People v. Stiggins

Full title: THE PEOPLE, Plaintiff and Respondent, v. DONALD KEITH STIGGINS, Defendant…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Oct 3, 2011

No. F060163 (Cal. Ct. App. Oct. 3, 2011)

Opinion

F060163

10-03-2011

THE PEOPLE, Plaintiff and Respondent, v. DONALD KEITH STIGGINS, Defendant and Appellant.

John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein, Paul A. Bernardino, and Ivan P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent.

Poochigian, J.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Madera Sup. Ct. No. MCR034735C)

OPINION

APPEAL from a judgment of the Superior Court of Madera County. Jennifer R.S. Detjen, Judge.

John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein, Paul A. Bernardino, and Ivan P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent.

STATEMENT OF THE CASE

On June 29, 2009, the Madera County District Attorney filed a first amended information in superior court charging appellant Donald Keith Stiggins and codefendant Isabel Garza as follows: count 1 - conspiracy to cultivate marijuana on March 26, 2009 (Pen. Code, § 182, subd. (a)(1), Health & Saf. Code, § 11358) (both defendants); count 2 - attempted marijuana cultivation on the same date (Pen. Code, § 664, Health & Saf. Code, § 11358) (both defendants); and count 3 - manufacture of concentrated cannabis on April 9, 2009 (Health & Saf. Code, § 11379.6, subd. (a)) (appellant only). As to counts 1 and 2, the district attorney specially alleged codefendant had served two prior prison terms (Pen. Code, § 667.5, subd. (b)), and as to all counts the district attorney specially alleged appellant had sustained a prior strike conviction (Pen. Code, § 667, subds. (b)-(i)).

On June 30, 2009, appellant was arraigned, pleaded not guilty to the substantive counts, and denied the special allegations of the first amended information.

On March 1, 2010, the court bifurcated trial of the prior conviction allegations. On March 3, 2010, jury trial commenced.

On March 10, 2010, the jury returned verdicts finding appellant guilty of the substantive counts.

On March 12, 2010, the trial court conducted a bifurcated hearing and found the special allegation relating to him to be true.

On April 19, 2010, appellant filed a written request to the court to dismiss strike priors (Pen. Code, § 1385) and on April 20, 2010, the People filed written opposition to that request.

On May 3, 2010, the trial court denied appellant probation, denied his request to strike priors, and sentenced him to a total term of 15 years 4 months in state prison. The trial court imposed the doubled upper term of 14 years on count 1, the doubled one-third of the middle term of 16 months on count two, and stayed punishment on count 3 (Pen. Code, § 654). The trial court imposed various fees and fines, including a $200 restitution fine (Pen. Code, § 1202.4, subd. (b)). The trial court imposed and suspended a second such fine pending successful completion of parole (Pen. Code, § 1202.45). The trial court awarded 103 days of custody credits.

On May 4, 2010, appellant filed a timely notice of appeal.

STATEMENT OF FACTS

Facts Relating to March 26, 2009, Encounter at Slide Creek

On March 26, 2009, Agent Bradlee Dorr of the Madera County Narcotics Enforcement Team (MADNET) and Agent Kevin Mayer of the United States Forest Service conducted a pre-season surveillance of the Sierra National Forest. Dorr had been a peace officer for 20 years and primarily focused on the investigation of major marijuana cases. Through those cases he had been involved in the seizure and eradication of more than a quarter million marijuana plants. Dorr had taken multiple narcotic detection and interdiction courses and had investigated more than 100 outdoor marijuana growing sites and between 20 and 50 indoor cultivation sites. Dorr testified in the "pre-season," outdoor marijuana growers locate areas so they can grow "on the right side of the mountain" to obtain maximum sunlight. Such growers also look for water sources and seek areas where they can secrete their marijuana crops so that law enforcement officers and others do not discover their activities.

The two agents went to the Slide Creek Area of the forest on Forest Service Road 81, sometimes called Minarets Road or Mammoth Pools Road. They saw tire tracks in the snow off the main road. Those tracks continued onto a dirt road. Proceeding on foot, the agents followed the tracks to an inaccessible portion of the mountain at Slide Creek. They saw sapling trees pulled across the road to prevent the ingress of vehicles. The tracks led the two agents to a Lincoln Continental with the driver's door and trunk open. The vehicle was located about 100 yards from the sapling trees. The agents saw three men near the vehicle: appellant, codefendant Isabel Garza, and Arnulfo Aguirre, the owner of the vehicle.

When Dorr and Mayer approached, appellant said, " 'Oh, look, it's the sheriffs.' " The agents asked what appellant was doing, and he responded by asking whether it was illegal to hike in the mountains. The agents then asked what the trio was doing at that specific location, and appellant said they were there to plant flowers. Appellant later told the agents he was there to grow marijuana to sell to dispensaries and cannabis clubs. The opened trunk contained 22 permeable growing bags of varying sizes, shovels, pruning shears, a pick ax, hoe, collapsible drip irrigation line, and drug scale. Agent Dorr said the plastic growing bags have holes in them to accommodate plant roots and water drainage. He said the bags can be used for growing marijuana and other plants and for transporting plants from place to place. The interior of the car contained a note bearing a phone number for a marijuana cultivation source city. The agents searched a backpack in Garza's possession. The pack contained irrigation paraphernalia: a drip line, fittings, connectors, strings, emitter tubes, and a water shut-off pump. Garza had 2.3 grams of marijuana in his left front pants pocket.

Dorr questioned Aguirre about a possible criminal history, and Aguirre denied he had ever been arrested. Dorr later determined that Aguirre had prior arrests and convictions for smuggling large quantities of marijuana across the U.S. border while armed. Dorr said the U.S. Border Customs conducted the arrests. Based on that record, Dorr concluded that Aguirre had "what we call DTO, drug trafficking organization, ties." Dorr asked appellant about Aguirre's involvement at Slide Creek and appellant said, " 'He's got the car and he's got the license.' "

In Agent Dorr's opinion, the trio was present in the Slide Creek area to establish the initial infrastructure for a marijuana garden. He explained the absence of marijuana seeds and baby plants was not unusual because such plants could not survive during that season of the year. However, the cold season could be used to establish a garden. Dorr said this process entailed finding an area with a ready water supply and ample sunlight, establishing plant holes and a drip line, and setting up a "brush barrier" to secrete the garden and prevent animals from eating the foliage of the marijuana plants.

Dorr said he confronted appellant about their reasons for being in the Slide Creek area, and appellant eventually said there was still a drip line present from prior marijuana gardens, and he and his companions were trying to use that existing infrastructure for a new garden. Dorr said the process of reusing a prior garden site is known as "reclimating." In his opinion, the prior garden site in the Slide Canyon area combined with the tools and supplies in the Lincoln could have produced a 1,000 plant marijuana garden. Agent Mayer said he had been involved in more than 500 marijuana garden cultivation cases over a 16-year period and noted that six prior marijuana garden sites were located within a one-mile walk from Aguirre's vehicle. Mayer said those sites yielded 7,903 marijuana plants before law enforcement raided them in 2007 and engaged in eradication efforts. He also said each of the sites still had infrastructure present.

Facts Relating to April 9, 2009, Search of Appellant's Home

On April 9, 2009, Madera Police Officer Brian Esteves, a member of MADNET, and other officers served a search warrant at appellant's home in Chowchilla. Appellant was the sole resident of the home. They found an indoor marijuana garden designed for the continuous propagation of approximately 30 marijuana plants. They also found maps, 26 five-inch starter marijuana plants, 4 two-foot plants in a reflective nylon growing tent, a 50-hole table, 490 squares for the typical three-stage growth of marijuana,¹ a water basin, and a five-row drip irrigation line. They further found 600 watt and 1,000 watt light bulbs, light ballasts and hoods, ventilation fans and exhaust tubes, a carbon dioxide container, liquid fertilizer, a window tarp, temperature gauge, starter kits, trays, an indoor growing diagram, a copy of the "Whole Drug Manufacturers Catalog," and other publications.

1 Agent Dorr testified: "Well, basically, you have three stages of growth in the marijuana. You have your starter stage, adolescent stage, and then your flowering stage." He noted that clippings can be taken from mature plants and then rooted to establish additional plants.

Agent Dorr said each of the indoor plants could yield three to four ounces of processed marijuana. In contrast, one outdoor plant could yield one pound of processed marijuana. Dorr said that marijuana plants contain the tetrahydrocannabinol (THC), which he characterized as "the active ingredient in marijuana that basically gets you high...." Agents who conducted the search of appellant's residence found a PVC pipe device designed to extract THC or "honey oil" from marijuana. According to Agent Dorr, marijuana plant material is placed inside the pipe and butane is then forced through the pipe to extract marijuana resin. That resin, in turn, is used to produce concentrated cannabis. Dorr said the process is volatile because it entails the evaporation of the butane and is susceptible to flash flames and burns. Dorr examined the PVC pipe and found a gooey substance consistent with honey oil that tested positive for THC. Dorr estimated the honey oil contained "the highest concentration of THC, which is up to 90 percent THC." He also testified the pipe contained approximately 62.5 grams of processed marijuana. Dorr said a white dish in appellant's bedroom had a green, tar residue, and Dorr believed it was used as part of the THC extraction process. At the conclusion of the case, the parties stipulated the substance inside the PVC pipe and the residue around the pipe had tested positive for THC.

At the time of the search, appellant told Officer Esteves he had become scared after his recent encounter with Agents Dorr and Mayer at Slide Creek. He claimed he was in the process of dismantling the indoor marijuana growing apparatus at his home.

Defense Evidence

Appellant testified he had been growing marijuana since 1976 and had done so hydroponically for at least 15 years. In April 2003, he obtained a physician's recommendation to grow marijuana and became a member of the Oakland Cannabis Buyers Co-operative (Co-operative). He enrolled at Oaksterdam University, what he called "a cannabis college," to learn "everything you really need to know about how we can try and put this medical marijuana in the proper place and shape that it should be."

Appellant said that 80 percent of the time he ingested marijuana by using honey oil in a glass pipe rather than by smoking leaf marijuana. He explained the honey oil is "completely clean. It's just nothing but the actual chemical itself, THC and CB, and it's a lot more healthier for you." Appellant said he also took a variety of other medications, including Lithium, Prozac, Norcos, Soma, and Clonopin. Appellant said he suffered from collapsed disks in his back, bipolar/manic depressive illness, and hepatitis C. Appellant said his ingestion of marijuana improved his appetite, helped him physically and mentally, eliminated nausea, and alleviated back pain.

Appellant testified he had sustained several felony convictions and had "gone to prison a couple times." These felonies included a 1985 conviction for grand theft auto, a 1986 conviction for assault with a firearm, and a 1998 conviction for violation of a restraining order. Appellant further explained his involvement with the Co-operative. He said he had given the Co-operative all of his medical records. In exchange for a $25 fee, the Co-operative gave him a card that would allow law enforcement officers to verify his status as a medical marijuana patient via computer. Appellant said the Co-operative did not sell marijuana. He purchased marijuana, baby marijuana plants, clones, and seeds at the Blue Sky Dispensary in Oakland.

Appellant testified he and his companions were in the Slide Creek area on March 26, 2009, to unload equipment necessary to identify and file for "[a] placer claim, a record of gold." He said they were going to look for gold using shovels, sluice boxes, and water. When asked about his March 26 conversation with Agent Dorr, appellant explained:

"I told him that we were going to be growing marigolds because he was racial profiling me and I didn't like how he was treating me. So I was being a smart ass. We own another gold claim around by El Portal and my
mom has planted marigolds there. And we had marigolds there, so I was being a smart ass when he asked me what we were going to be doing."

Appellant explained that he did not want to tell Dorr or anyone else about his gold claim because he had not filed it yet.

Appellant said he "probably" told Officer Esteves that he was in the Slide Creek area to grow marijuana. However, he said his statement to Esteves was in response to "racial profiling" and pointed out his equipment and supplies could be used for legal and illegal purposes. He added, "I was going to go up there [to Slide Creek], GPS [the placer claim] it, come back down, go to Sacramento and file the claim."

Appellant said he had known Isabel Garza for about five years and was a good friend of Garza's uncle. Appellant said he had been to Garza's home, but Garza had not been to his home. Appellant thought Garza knew he used medical marijuana, but he had never ingested it in front of Garza. Appellant said he and Garza had conversations about marijuana. According to appellant, he and Aguirre went to Garza's home at 9:00 a.m. on March 26, 2009, and appellant asked for Garza's help. Appellant and Aguirre traveled in Aguirre's gold car, which carried irrigation supplies and tools but no marijuana seeds or plants. Appellant told Garza he had a job for him. The job entailed moving supplies, and appellant offered Garza "$100 a day for a full day's pay," with the possibility of several more days of employment. Appellant said Garza had been laying carpet for a cousin and needed work.

When they arrived in the mountains, appellant instructed Garza that he was going to be "[m]oving stuff up." Appellant said his health was not good and he could not carry too much. The trio was at the Slide Creek location for between five and seven minutes when officers arrived. Appellant said Garza had never assisted him with growing marijuana at his residence. Appellant said he ultimately filed a gold claim and placed a monument marker on the land on Slide Creek. The claim was filed with the state in November 2009.

Rebuttal Evidence

Agent Dorr testified that appellant did not mention "marigolds" when he encountered him at Slide Creek on March 26, 2009. According to Dorr, appellant said he was in the mountains to grow marijuana and appeared to be the leader of the trio. At some point, appellant did mention he was present to grow flowers.

DISCUSSION

I. THE TRIAL COURT PROPERLY DENIED APPELLANT'S MOTION TO SUPPRESS STATEMENTS MADE DURING THE MARCH 26, 2009, ENCOUNTER WITH AGENTS AND THE APRIL 9, 2009, SEARCH

Appellant contends the trial court committed reversible error by denying his motions to suppress custodial statements to law enforcement officers at Slide Creek in the Sierra National Forest on March 26, 2009, and at his home during the search of April 9, 2009.

A. General Law Governing Custodial Interrogations

A custodial interrogation is one in which there is a formal arrest or a restraint on the defendant's freedom of movement to a degree associated with formal arrest. (California v. Beheler (1983) 463 U.S. 1121, 1125.) "In determining whether an individual [is] in custody, a court must examine all of the circumstances surrounding the interrogation, but 'the ultimate inquiry is simply whether there [was] a "formal arrest or restraint on freedom of movement" of the degree associated with a formal arrest.' [Citations.]" (Stansbury v. California (1994) 511 U.S. 318, 322.) The rule of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) applies only to custodial interrogations. (People v. Mickey (1991) 54 Cal.3d 612, 646.) In People v. Morris (1991) 53 Cal.3d 152, 197, the California Supreme Court held that whether custody has occurred short of a formal arrest for purposes of the Miranda rule depends on the totality of the circumstances, including such factors as: "(1) the site of the interrogation; (2) whether the investigation has focused on the suspect; (3) whether the indicia of arrest are present; and (4) the length and form of the questioning." No one factor is dispositive, and the mere fact a person is a suspect does not establish custodial interrogation. (See also Oregon v. Mathiason (1977) 429 U.S. 492, 495.) A person temporarily detained and subjected to investigatory questions pursuant to a routine traffic stop is not in custody for purposes of Miranda. (Berkemer v. McCarty (1984) 468 U.S. 420, 438-440; People v. Forster (1994) 29 Cal.App.4th 1746, 1754; see also People v. Bell (1996) 43 Cal.App.4th 754, 760 [ordinary traffic stop treated as investigatory detention].) A traffic stop is justified at its inception if based on at least a reasonable suspicion that the driver has violated the Vehicle Code or some other law. (People v. Miranda (1993) 17 Cal.App.4th 917, 926.)

In ruling on a motion to suppress under Penal Code section 1538.5, the superior court sits as a finder of fact with the power to judge credibility, resolve conflicts, weight evidence, and draw inferences. (People v. Needham (2000) 79 Cal.App.4th 260, 265.) "In reviewing the denial of a motion to suppress evidence pursuant to [Penal Code] section 1538.5, [an appellate court] consider[s] the record in the light most favorable to respondents, since all factual conflicts must be resolved in the manner most favorable to the superior court's disposition on the suppression motion. [Citation.] [The appellate court] then exercise[s] [its] independent judgment to determine whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment. [Citations.]" (People v. Bloom (2010) 185 Cal.App.4th 1496, 1500.)

B. Law Governing Invocation of Right to Counsel

The California Supreme Court stated in People v. Stitely (2005) 35 Cal.4th 514, 535: "To protect the Fifth Amendment privilege against self-incrimination, a person undergoing a custodial interrogation must first be advised of his right to remain silent, to the presence of counsel, and to appointed counsel, if indigent. (Miranda, supra, 384 U.S. 436, 444, 467-473, 478-479.) As long as the suspect knowingly and intelligently waives these rights, the police are free to interrogate him. (Id. at pp. 444, 475, 479.) However, if, at any point in the interview, the suspect invokes his rights, questioning must cease. (Id. at pp. 444-445, 473-474; see Edwards v. Arizona (1981) 451 U.S. 477, 484-485... [questioning cannot resume until request for counsel is granted or suspect restarts interview ].) Statements obtained in violation of these rules are inadmissible to prove guilt in a criminal case. (Miranda, supra, 384 U.S. at pp. 444, 476-477, 479; [citations].)"

"The right to counsel established in Miranda was one of a 'series of recommended "procedural safeguards" ... [that] were not themselves rights protected by the Constitution but were instead measures to insure that the right against compulsory self-incrimination was protected. [Citations.] The right to counsel recognized in Miranda is sufficiently important to suspects in criminal investigations ... that it 'requir[es] the special protection of the knowing and intelligent waiver standard.' Edwards v. Arizona [(1981) 451 U.S. 477, 483.]" (Davis v. United States (1994) 512 U.S. 452, 457-458.) ". Miranda does not require that attorneys be producible on call, but only that the suspect be informed . that he has the right to an attorney before and during questioning, and that an attorney would be appointed for him if he could not afford one.... If the police cannot provide appointed counsel, Miranda requires only that the police not question a suspect unless he waives his right to counsel. [Citation.]" (Duckworth v. Eagan (1989) 492 U.S. 195, 204, fn. omitted.)

C. Procedural History of the Suppression Motions

On August 24, 2009, the prosecutor filed motions in limine for jury trial and asserted that appellant's statements to Agent Dorr on March 26, 2009, and his statements to Agent Esteves on April 9, 2009, were admissible as evidence. On March 1, 2010, the prosecutor filed supplemental points and authorities with respect to the motions in limine and asserted that appellant's March 26, 2009, statements to Dorr were admissible "not only to impeach defendant Stiggins should he testify, but in the People's case in chief also." The prosecutor cited United States v. Davis (9th Cir. 2008) 530 F.3d 1069 ² (Davis) as sole case authority for the proposition that "there was no requirement that Agent Dorr advise Stiggins of his Miranda rights during the Terry stop time frame, and therefore Mr. Stiggins['s] ... statements [in the forest] should be allowed to be introduced in the People's case in chief as admissions made by a party opponent."

2 In Davis, law enforcement agents executed a search warrant and raided a large marijuana growing operation on private property in rural Oregon. The property belonged to Jeffrey and Cynthia Davis. While officers were executing the warrant on the Davis property, Jeffrey's brother, Richard, drove onto the property through a locked gate. In response to a question by officers, Richard said he knew "everything" about the marijuana growing operation. After a five-to-ten minute conversation with agents, Richard was handcuffed and escorted to the main residence on the property. An agent searched his vehicle and found handguns, thousands of dollars in cash, and a pair of scissors with a residue stain. Agents used the evidence in the vehicle, along with Richard's statements, to obtain a warrant to search his property located a half-mile away from that of Jeffrey and Cynthia. The search of Richard's property yielded another 150 marijuana plants. Richard unsuccessfully moved to suppress evidence and the Ninth Circuit Court of Appeals affirmed.

On March 2, 2010, the court conducted an Evidence Code section 402 hearing and heard the testimony of Sheriff's Detective Brian Esteves with respect to appellant's statements at his residence on April 9, 2009.

On March 4, 2010, the court conducted a second Evidence Code section 402 hearing and heard the testimony of Agent Dorr regarding the March 26, 2009, encounter at Slide Creek.

D. Facts Elicited and Rulings Rendered at the Evidence Code Section 402 Hearings

1. March 2, 2010, Hearing

Brian Esteves testified he was a narcotics detective with the City of Madera Police Department. On April 9, 2009, he and other officers served a search warrant at appellant's home in Chowchilla. Appellant was not present at the home when officers first arrived to conduct a search. The officers arranged for Chowchilla Police Officer Ryan Videgain to stop appellant pursuant to a warrant and bring him back to the house. When appellant arrived at his home, he told Detective Esteves he wanted to see the warrant and wanted an attorney. Appellant was initially handcuffed, but officers made him more comfortable, and he sat on a couch as officers commenced the search.

Agent Pritchard of the Madera Gang Enforcement Team and another agent conducted the search in the laundry room of appellant's home. After the search began, Esteves heard Pritchard and the other agent loudly say something about a pipe bomb or about something resembling a pipe bomb. Esteves went to the laundry room to see what they were talking about and appellant yelled back, " 'It's not a pipe bomb. It's for extracting THC.' " Esteves said "he offered that on his own." After appellant made that statement, he and Esteves waited for Agent Dorr to arrive to process evidence. Esteves, Agent Robert Blehm, and appellant sat in the latter's living room, talked about some magazines on a table, and made other small talk. At some point, Esteves advised appellant of his rights pursuant to Miranda, supra, 384 U.S. 436. Esteves said appellant appeared to understand his rights and again said he wanted an attorney.

Agent Dorr arrived and Esteves walked him around and advised him what the officers found on their initial search. At some unspecified point in time, appellant stated that his cultivation of marijuana was legal under the Compassionate Use Act of 1996 (CUA) (Health & Saf. Code, § 11362.5, subd. (a).) Agent Dorr walked from appellant's "grow room" to the living room and asked about documentation to verify his CUA claim. Appellant gave a location for the documentation. Dorr went to look, returned, and asked "if he had a valid one." At that point, appellant told the agents, " 'Hey, look. Shut the door and I'll talk with you guys.' " Esteves said appellant began making some incriminating statements. According to Esteves, appellant said something to the effect of: "[Y]ou know, when we were up there in the mountains the other day, we were looking to grow some marijuana and basically when [we] ran into Agent Dorr it scared the crap out of [us] and [I] came back and started dismantling [the] grow and stuff." Esteves concluded that Dorr was unaware of appellant's request for counsel and stopped appellant from speaking.

Esteves reminded appellant that he initially wanted an attorney and told appellant, " 'If that's the case, we can't talk with you.' " Esteves then asked, " 'So are you willing to talk to us now?' " Esteves said appellant replied, " 'Yeah, I'll talk with you guys.' " According to Esteves, the appellant went into more detail about his contact with Dorr in the mountains and then explained the THC extraction process using the pipe. Appellant advised the agents he had learned the extraction process in some classes he had taken.

After hearing the arguments of counsel, the court ruled as to appellant's April 9, 2009, statements at his home:

"All right. The Court finds that both statements are admissible. The first one is a spontaneous statement. The second one was also the defendant exercising his right to speak if that's what he wanted to do. The officer actually tried to stop him from incriminating himself and he still chose to do it. So the Court does not find ... a violation of Miranda and these statements are admissible."

2. March 4, 2010, Hearing

Narcotics Detective Bradlee Dorr testified he was working as a special agent assigned to MADNET on March 26, 2009. That day, he and Special Agent Kevin Mayer of the U.S. Forest Service were in the Sierra National Forest in Madera County to conduct preseason surveillance. The two agents were dressed in plain clothes and Dorr's gun was not visible, although his badge was visible on the outside of his clothing and Mayer's badge was exposed on his belt. Both agents were dressed in jeans, hiking boots, and regular T-shirts.

At 2:00 p.m. that day, Dorr noticed a dirt road off of Forest Service Road 81. The dirt road still had snow on it and there were fresh tire tracks running up to the road. Dorr followed these tracks, and five to ten minutes later he found a gold Lincoln Continental parked on the roadway up in the forest. Aguirre was standing outside the open driver's door. Appellant was standing on the passenger side by the open trunk and he was holding a shovel. Garza was standing to appellant's left and was putting on a black backpack.

When Dorr made contact with the trio, appellant's first comment was, " 'Oh, look, it's the sheriffs.' " Then appellant asked whether it was illegal for them to hike in the mountains, Dorr responded, "[N]o, it was not." Dorr then focused on Garza and asked what was in the backpack. Garza said, "Nothing." Dorr asked if Garza would mind opening the backpack for him. Garza opened the backpack and Dorr noticed "several items that through my training and experience are indicative of infrastructure. They are used in outdoor marijuana cultivation."

After Dorr looked inside the backpack, he asked appellant what they were doing at that location. Appellant said they were there to plant flowers. Dorr then advised the trio they were being detained for further investigation and were not free to leave. Appellant asked, " 'What's the difference between being detained and being arrested?' " Dorr said, "[Y]ou are not being put in handcuffs." Dorr then asked them to sit away from the vehicle, but they were not placed in handcuffs. After Dorr instructed Garza to sit down, he again asked to look inside his backpack. Dorr asked all the subjects if they had any contraband on them, and Garza produced a small bag of marijuana from his left front pants pocket. Dorr had not searched Garza prior to asking that question.

Dorr saw visible hand tools in the trunk of the vehicle along with a black plastic bag. He asked Aguirre if he could look in the car at the opaque black plastic bag. Dorr asked Aguirre what was in the bag and Aguirre said, " 'Hose.' " Dorr asked if he could look into the bag. Aguirre consented and Dorr found a roll of collapsible drip line in the bag. Dorr said the tools and drip line were consistent with the outdoor cultivation of marijuana. Dorr said the trio sat on the ground while he performed a search of the vehicle and backpack and took an inventory of items seized.

After these various discoveries, Dorr told the trio "that due to the circumstances they could be arrested for attempting to cultivate marijuana in the mountains." Dorr explained at the Evidence Code section 402 hearing, "[B]ased on the items they had, the area they were in, it was my opinion they were at the location to establish a marijuana garden and they could be arrested." Dorr testified that he so advised the three detainees. Appellant responded, " 'Since we are being frank, I'll tell you. The reason we are here is because Sheriff John's son told us there were marijuana gardens here in the past and there is still drip-line up in the mountains still up there.' " According to Dorr, appellant also said they were present to grow marijuana in the mountains to sell to the cannabis clubs. Dorr said he and Mayer never drew their guns or pointed them at the trio and never handcuffed the trio or commenced the process associated with taking someone into custody. Dorr said he and Mayer were the only law enforcement officers at the scene.

Dorr said his encounter with appellant, Garza, and Aguirre took up 15 to 20 minutes, although the time stamp on the camera used to take photographs suggested the encounter took a longer period of time. During that period of time, he photographed the car, the area surrounding it, and the three subjects.

After hearing the arguments of counsel, the court ruled as to appellant's March 26, 2009, statements at Slide Creek:

"All right. The Court finds that the officers or this officer, the officers had cause to detain these individuals. They did have a basis for suspecting criminal activity. The statements that Agent Dorr made were less than what is characterized in U.S. versus Davis as a moderate amount of questions. Those statements were made, questions were asked to obtain information confirming or dispelling Officer Dorr's suspicions. So this does not come within Miranda, Arizona versus Miranda. So the Motion to Suppress the statements is denied."

E. Discussion

1. The March 2, 2010, Ruling as to Admissibility of the Statements Made at Appellant's Home on April 9, 2009

a. Statement About the PVC Pipe

Appellant initially contends his statements about the THC extraction device were inadmissible because they were made during a police interrogation without counsel present. He maintains he unequivocally requested counsel twice - once when he first arrived at his home and once after Detective Esteves gave him his Miranda warning.

A careful reading of the record reveals that Chowchilla police brought appellant to his home. Appellant sat in the living room with Detective Esteves while other officers executed the search warrant. According to Esteves, he and appellant were engaged in "just small talk, chitchatting." During this conversation, several officers began talking out loud in the laundry room. Detective Esteves left his location in the living room and walked back to the laundry room to see what the other agents were talking about. Appellant yelled out, " 'It's not a pipe bomb. It's for extracting THC.' "

At argument on the motion to suppress, defense counsel conceded the question from the laundry room was not directed at appellant. However counsel maintained "the question was of such a provocative nature" that it "basically deman[ded] an answer of Mr. Stiggins."

The trial court observed:

"In this case Mr. Stiggins chose to speak. In fact, Detective Esteves actually tried to stop him from incriminating himself by telling him, 'No, you've asked for a lawyer.' And in spite of that Mr. Stiggins still chose to continue to speak. His statements did incriminate him. But it was his choice."

The court ultimately ruled that appellant's first statement about the PVC device was admissible as a spontaneous statement.

Inquiries that do not influence the manner of a suspect's statement or otherwise elicit information the suspect did not intend to freely disclose do not violate Miranda. (People v. Ray (1996) 13 Cal.4th 313, 338; People v. Gamache (2010) 48 Cal.4th 347, 387-388.) Here, two agents searching the laundry room pursuant to a warrant discovered an unusual device and commented aloud about its resemblance to a pipe bomb. The laundry room was separate from the living room in which Detective Esteves and appellant were located. After hearing the comments, Esteves proceeded to the laundry room to see what the agents were talking about and appellant "offered that [remark] on his own." In ruling on a suppression motion, the power to judge the credibility of witnesses, resolve any conflicts in the testimony, weigh the evidence, and draw factual inferences is vested in the trial court. The trial court has the duty to decide whether, on the facts found, the search was unreasonable within the meaning of the Constitution. (People v. Sun (2007) 148 Cal.App.4th 374, 381.)

Here, the trial court heard the testimony of Detective Esteves, implicitly found him to be credible, and concluded that appellant's statement about the PVC device was a spontaneous. An appellate court defers to the express and implied factual findings of the superior court. (People v. Lomax (2010) 49 Cal.4th 530, 563.)

b. Statements About Growing Marijuana

Appellant also contends his statements to Detective Esteves and Agent Dorr about growing marijuana were inadmissible because they were made during a police-initiated interrogation without counsel present.

Detective Esteves said when appellant arrived at his home on April 9, 2009, he asked to see the warrant and asked for an attorney. Appellant sat on the living room couch and officers began a search of the residence. After the incident involving the PVC device, Esteves, Agent Blehm, and appellant sat in the living room to wait for Agent Dorr, who was going to come to the residence to process the evidence. At that time, Esteves advised appellant of his rights, and appellant again said he wanted an attorney. Esteves said he and Blehm conversed with appellant after the advisement but he described the subjects as "irrelevant stuff. I think some magazines he had there. Anyway, what was on TV or whatever. Just chitchatting about other stuff."

When Agent Dorr arrived, Esteves walked him around the house and advised him about what had been found on the initial search. At some unspecified point in time, appellant had advised officers that the cultivation of marijuana inside his home was legal under the Compassionate Use Act (CUA). Agent Dorr entered the "grow room" and then came out to ask for the location of appellant's CUA documentation. Appellant gave Dorr the location and Dorr looked and came back to the living. Esteves could not recall if the documentation was missing from the stated location or whether the documentation was present but there was "something wrong with it." Esteves did recall that Dorr "came back in and asked Mr. Stiggins ... where it was or if he had a valid one." At that point, appellant, said, " 'Hey, look. Shut the door and I'll talk with you guys.' " Appellant began making some incriminating statements. According to Esteves, appellant "said something to the effect of, you know, when we were up there in the mountains the other day, we were looking to grow some marijuana and basically when they ran into Agent Dorr it scared the crap out of them and he came back and started dismantling his grow and stuff."

At the time appellant made those statements, Esteves did not believe that Agent Dorr was aware of the prior advisements or appellant's request for counsel. Esteves intervened, stopped appellant, reminded him that he initially wanted an attorney, and said, " 'If that's the case, we can't talk with you.' " Esteves added, " 'So are you willing to talk to us now?' " Appellant responded, " 'Yeah, I'll talk with you guys.' " Appellant then gave more details about his contact with Agent Dorr in the mountains and about his THC extraction process using the PVC pipe.

Volunteered statements of any kind are not barred by the Fifth Amendment and police may speak to a suspect in custody as long as the speech would not reasonable be construed as calling for an incriminatory response. (People v. Gamache, supra, 48 Cal.4th at pp. 387-388.) Here, the appellant advised officers that his indoor cultivation of marijuana was legal under the CUA and Agent Dorr's questions regarding valid CUA documentation - an exculpatory item under the facts of this case - could not be reasonably construed as calling for an incriminating response. Moreover, the parties stipulated at trial that appellant possessed a valid physician's recommendation to cultivate and use marijuana for personal medical purposes.

As to appellant's statements about looking to grow marijuana in the mountains, the trial court properly held that appellant reinitiated his discussion with officers despite twice previously invoking his right to counsel. " '[A]n accused ... having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with police.' [Citation.] An accused 'initiates' such dialogue when he speaks words or engages in conduct that can be 'fairly said to represent a desire' on his part 'to open up a more generalized discussion relating directly or indirectly to the investigation.' [Citation.] In the event he does in fact 'initiate' dialogue, the police may commence interrogation if he or she validly waives his rights. [Citations.]" (People v. Mickey, supra, 54 Cal.3d at pp. 648-649.)

Here, as the trial court observed, appellant chose to speak despite the efforts of Detective Estevez to stop the conversation with appellant, to remind appellant of his invocation of the right to counsel, and to explain the meaning of that invocation ("If that's the case, we can't talk with you"). Moreover, appellant did not reinitiate the discussion in response to direct questioning by officers about his indoor cultivation of marijuana. Rather, appellant reinitiated the discussion after Agent Dorr posed several brief questions as to the whereabouts and/or validity of his CUA documentation, a fact that appellant had volunteered to officers. Nothing in the queries of Agent Dorr was reasonably likely to elicit information that appellant did not otherwise intend to freely provide. (People v. Ray, supra, 13 Cal.4th at p. 338.) Moreover, appellant made the bulk of those statements only after Detective Esteves reminded appellant of his invocation of the right to counsel under Miranda and after expressly securing appellant's waiver of that previously-invoked right.

Finally, appellant contends the judgment must be reversed unless the error was harmless beyond a reasonable doubt. (Dickerson v. United States (2000) 530 U.S. 428, 440; Chapman v. California (1967) 386 U.S. 18, 24.) Here, as the People point out, the physical evidence seized at Slide Creek on March 26, 2009, and at appellant's Chowchilla home on April 9, 2009, constituted substantial evidence of appellant's knowledge of marijuana cultivation and manufacture. Moreover, the parties stipulated, at the request of the defense, that appellant was an expert in growing marijuana. In view of this state of the evidence, any error in admitting appellant's challenged statements of April 9, 2009, was harmless beyond a reasonable doubt.

2. The March 4, 2010, Ruling as to the Admissibility of Statements Made at Slide Creek on March 26, 2009

Appellant contends the trial court committed reversible error by admitting appellant's statements to Agents Dorr and Mayer because he had not been given the required Miranda warnings at the time he uttered the statements. He particularly contends the case cited by the trial court, Davis, supra, 530 F.3d 1069, is inapplicable to the facts of this case.

In Davis, law enforcement officers executed a constitutionally valid search warrant and raided a large marijuana growing operation on private property in rural Oregon. The property belonged to Jeffrey and Cynthia Davis. While officers were executing the warrant, Jeffrey Davis's brother, Richard, drove onto the property through a locked gate. Richard got out of his vehicle and asked two deputies what was going on. The deputies informed him they were executing a search warrant. Richard asked more questions, but the deputies informed him that he needed to speak to one of the detectives, and that he needed to be read the search warrant. While Richard waited to be read the warrant, the deputies continued conversing with him and asked whether Richard could move his vehicle so that other officers could enter the driveway. They also asked if he could grab his driver's license. Richard moved his vehicle, retrieved his identification, and gave his license to an agent of the Drug Enforcement Administration (DEA). After a sheriff's sergeant read Richard the warrant, several reserve deputies searched him and found a tin of hashish oil on his person. The DEA agent who had seen Richard's license asked what he knew about marijuana cultivation in a large shop building on the property. Richard told the agent he knew "everything" and said he had "helped" in the operation. Richard unsuccessfully moved to suppress evidence of his statements. The district court held he was not in custody at the time of questioning and was not entitled to receive Miranda warnings. Richard ultimately pleaded guilty to one count of manufacturing marijuana and one count of possession of an unregistered destructive device. (Davis, supra, 530 F.3d at pp. 1073-1076.)

On appeal, Richard claimed the law enforcement officers violated his Fourth Amendment rights by detaining him, questioning him, frisking him, searching his vehicle, and searching his real property located about one-half mile away. The Ninth Circuit affirmed the district court's denial of Richard's suppression motion. Richard argued he was in custody for Miranda purposes at the time the DEA agent questioned him, and the district court should have suppressed his statements to the agent and the subsequent fruit of those statements because he was not given Miranda warnings. (Davis, supra, 530 F.3d at pp. 1080-1081.)

Because Richard was detained incident to the execution of a search warrant, the Circuit Court was required to determine whether the officers' questioning stayed within the bounds of those permitted during a Terry ³ stop. During a Terry stop, officers may ask the detainee a moderate number of questions to determine his identity and try to obtain information confirming or dispelling the officer's suspicions. During Richard's initial counter with the deputies, he was briefly questioned about who he was and why he was on the property. The DEA agent next questioned Richard, and Richard described their conversation as "casual" and "low-key." The agent asked Richard what he knew about cultivation operations in the shop building and Richard responded, "everything." The agent then asked Richard about his role in the operation and the duration of that role. The Ninth Circuit concluded that none of these questions went beyond those that would normally be permissible during a Terry stop. The total number of questions was minimal and the initial questions were directed at determining Richard's identity and his reason for being on the property. The DEA agent's questions were aimed at obtaining information to confirm or dispel the agent's suspicion that Richard might be part of Jeffrey and Cynthia's growing operation. Accordingly, the officers were not required to advise Richard of his Miranda rights. (Davis, supra, 530 F.3d at pp. 1081-1082.)

3 Terry v. Ohio (1968) 392 U.S. 1

Appellant contends his case is distinguishable because "appellant was in custody when he was questioned on the mountain by Agent Dorr. Agent Dorr told appellant that he was being detained. [Citation.] Agent Dorr compelled appellant and his companions to sit in a specific location while the officers conducted their investigation. Agent Dorr then questioned appellant and obtained the admission from him that he was in the mountain to grow marijuana. [Citation.] This statement was obtained without Miranda warnings being read and should have been excluded from evidence."

The California Supreme Court has held: "[Miranda]and its progeny apply to exclude certain evidence obtained during custodial interrogation. (Rhode Island v. Innis (1980) 446 U.S. 291, 297.) Innis explained that 'the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term "interrogation" under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.' (Id. at pp. 300-301, fns. omitted.) [¶] Interrogation thus refers to questioning initiated by the police or its functional equivalent, not voluntary conversation. (Rhode Island v. Innis, supra, at pp. 298-300.) ' "Volunteered statements of any kind are not barred by the Fifth Amendment ...." ' The 'functional equivalent' to express questioning involves police-initiated deceptive techniques designed to persuade or coerce a criminal defendant into making inculpatory statements. (Innis, supra, at p. 299.) The determination of whether an action is reasonably likely to elicit an incriminating response focuses primarily on the perceptions of the suspect, rather than the intent of the police. (Id. at p. 301.)" (People v. Thornton (2007) 41 Cal.4th 391, 432.)

In this case, Agents Dorr and Mayer contacted appellant and his companions at 2:00 p.m. on March 26, 2009. Appellant and his companions were located on a dirt road extending from Forest Service Road 81. The agents found a gold Lincoln Continental parked on the dirt roadway in the forest. Appellant was standing on the passenger side of the car by the open trunk. He was holding a shovel. Garza was standing to appellant's left and was putting on a black backpack. Aguirre was standing outside the open driver's door. When Dorr made contact with the trio, appellant's first comment was, " 'Oh, look, it's the sheriffs.' " Appellant followed up this statement by asked whether it was illegal for them to hike in the mountains. Dorr said it was not and then focused on Garza, asking him what was in the backpack. When Garza did not respond, Dorr asked whether Garza would mind opening the pack for him. Garza did so and Dorr saw items indicative of outdoor marijuana cultivation. After Dorr saw those items, he asked what the trio was doing at that location and appellant said they were there to plant flowers. After that response, Dorr advised the three men they were being detained for further investigation.

The trial court found that Dorr asked one question directly of the appellant when Dorr and Mayer arrived at Slide Creek: " 'What are you doing at this location?' " This occurred before appellant was subjected to any sort of formal detention and Dorr's query was essentially "general questioning of citizens in the fact-finding process," an inquiry which the Supreme Court itself expressly exempted from the requirements of Miranda. (Miranda, supra, 384 U.S. at p. 477.) Appellant's response to Dorr's question was that he and his companions were at Slide Creek to plant flowers. This response was not inculpatory and appellant does not specifically challenge it on appeal.

The trial court further noted that Dorr asked Garza, " 'What is in the backpack?' " and " 'Would you open it [?]' " He asked Aguirre, " 'Can I look in the car?' " Aguirre consented to an examination of the trunk, which contained visible hand tools, and a black bag in the trunk, which contained a roll of collapsible drip line. In Dorr's experience, these items were consistent with outdoor cultivation of marijuana. After examining the backpack and car, Dorr told the trio, due to the circumstances, they could be arrested for cultivation in the mountains. At that point appellant volunteered, " 'Since we are being frank, I'll tell you. The reason we are here is because Sheriff John's son told us there were marijuana gardens here in the past and there is still drip-line up in the mountains still up there.' "

Appellant contends he was in custody when he was questioned on the mountain by Agent Dorr and points out that Dorr told him he was being detained. If officers possess a reasonable suspicion of criminal activity, they may briefly detain a suspect to investigate the possible criminal activity. This is true even though there is no probable cause for an actual arrest. The detention is permissible to determine the suspect's identity or to maintain the status quo while obtaining more information. The officer may ask a moderate number of questions to determine the person's identity and to try to obtain information confirming or dispelling the officer's suspicions. The officer's suspicion is reasonable if the officer knows particularized, objective facts that lead to a rational inference that a crime is being or has been committed. (United States v. Hernandez-Hernandez (8th Cir. 2003) 327 F.3d 703, 706.) Moreover, briefly reciting to a suspect in custody the basis for holding him, without more, cannot be the functional equivalent of interrogation. (Enoch v. Gramley (7th Cir. 1995) 70 F.3d 1490, 1500.)

Here, the trial court essentially found that Agent Dorr asked a modest number of questions to confirm or dispel his suspicions about presence of appellant, Garza, and Aguirre in the forest. The court observed:

"The only questions Detective Dorr asked were, 'What is in the backpack?' He asked that of Mr. Garza, 'Would you open it.' He asked that of Mr. Garza. 'What are you doing at this location?' He asked that of all of them. 'Can I look in the car?' He asked that of the third individual who is not on trial here [Aguirre]. And then told them, due to the circumstances, you could be arrested for cultivation in the mountains. That's all he said."

Echoing the principles of United States v. Hernandez-Hernandez, the superior court concluded Agents Dorr and Mayer had a basis for suspecting marijuana cultivation activity, Dorr asked fewer questions than the "moderate amount of questions" asked in Davis, and the questions were asked to obtain information to confirm or dispel Officer Dorr's suspicions about possible criminal activity in the forest. Dorr's statements to the trio were neither deceptive nor coercive. Both Dorr and Mayer were dressed in plain clothes and neither drew a weapon. Dorr did not tell the trio they were under arrest. Rather, he explained: "What I told them was, based on the items they had, the area they were in, it was my opinion they were at the location to establish a marijuana garden and they could be arrested." (Emphasis added.) The exchange between Dorr and appellant did not amount to a custodial interrogation, particularly where Dorr offered no response to appellant's voluntary statement about "Sheriff John's son." Police may speak to a suspect in custody as long as the speech would not reasonably be construed as calling for an incriminatory response. (People v. Huggins (2006) 38 Cal.4th 175, 198.)

The trial court properly ruled that no custodial interrogation of appellant occurred during the March 26, 2009, encounter at Slide Creek.

II. THE TRIAL COURT DID NOT ERR IN FAILING TO GIVE DEFENSE INSTRUCTIONS ON THE COMPASSIONATE USE ACT AND THE JUDGMENT OF CONVICTION OF MANUFACTURE OF CONCENTRATED CANNABIS SHOULD NOT BE REVERSED

Appellant contends the trial court committed reversible error as to count 3 by failing to modify CALCRIM No. 2330 [manufacturing a controlled substance (Health & Saf. Code, § 11379.6, subds. (a), (b))] to reflect a defense pursuant to the Compassionate Use Act of 1996 (CUA).

A. Introduction to the Compassionate Use Act

Proposition 215, the "Medical Use of Marijuana" initiative added Health and Safety Code section 11362.5, entitled the "Compassionate Use Act of 1996." (People v. Mower (2002) 28 Cal.4th 457, 463; Health & Saf. Code, § 11362.5, subd. (a).) The purpose of the Act is to ensure that seriously ill people have the right to obtain and use marijuana for medical purpose "where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief." (Health & Saf. Code, § 11362.5, subd. (b)(1)(A).)

The California Supreme Court stated in People v. Wright (2006) 40 Cal.4th 81, 8990, footnote omitted:

"Adopted by the voters on November 5, 1996, the purpose of the CUA is three-fold: '(A) To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician .. [¶] (B) To ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction. [¶] (C) To encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana.' ([Health & Saf. Code,] § 11362.5, subd. (b)(1).)
"The CUA provides a defense for physician-approved possession and cultivation of marijuana: "[Health & Saf. Code,] [s]ection 11357, relating to the possession of marijuana, and [Health & Saf. Code,] 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 .' ([Health & Saf. Code,] § 11362.5, subd. (d).)"

B. Count Three of the First Amended Information

Count 3 of the first amended information states:

"For a further and separate cause of action, being a different offense of the same class of crimes and offenses as the charge set forth above, the said defendant DONALD KEITH STIGGINS did, on or about April 9, 2009, in the County of Madera, State of California, commit a FELONY, namely, violation of Section 11379.6(a) of the Health & Safety Code of the State of California, in that the said defendant did unlawfully manufacture, compound, convert, produce, derive, process and prepare a controlled substance, to wit: concentrated cannabis, a.k.a. 'Butane Honey Oil[.']"

C. Requests for Jury Instructions

On August 24, 2009, the prosecutor filed a first set of requested jury instructions, including CALCRIM No. 2370. On the same date he filed motions in limine for jury trial. The prosecutor cited People v. Bergen (2008) 166 Cal.App.4th 161 (Bergen) and asserting in pertinent part:

"In [Bergen]the court held that when the method used to extract marijuana resin is by means of a chemical such as butane, the appropriate criminal charge covering such conduct is HS 11379.6(a) [manufacturing a controlled substance]. Id. at p. 169. None of the medical marijuana statutes provide a defense for this criminal charge, therefore the fact that an individual has a medical marijuana recommendation is not a defense. [¶] In the present case, the People expect that the evidence will demonstrate that defendant Stiggins had a medical recommendation for use of medical marijuana. However, the evidence will also demonstrate that he was engaging in a process of extracting marijuana resin from marijuana using a chemical process with butane. Therefore, his medical marijuana recommendation is not a defense to his manufacturing activities, and the jury should be so instructed."

On March 2, 2010, appellant filed a first amended request for jury instructions, including CALCRIM No. 2370. On the same date, appellant filed a combined trial brief and request for a special jury instruction on manufacturing a controlled substance. Appellant's pleading requested that CALCRIM No. 2330, relating to manufacturing of a controlled substance, be modified to reflect a defense pursuant to the CUA by adding the following language:

" 'Processing marijuana to make concentrated cannabis is lawful if authorized by the Compassionate Use Act. In order for the Compassionate Use Act to apply, the defense must produce evidence tending to show that his processing of marijuana was for personal medical purposes with a physician's recommendation or approval. The amount of concentrated marijuana possessed must be reasonably related to the patient's current medical needs. If you have a reasonable doubt about whether the defendant's possession or processing of concentrated cannabis was unlawful under the Compassionate Use Act, you must find the defendant not guilty.' "

D. Reported Conferences on In Limine Motions

On March 1, 2010, the court conducted a hearing on the respective pretrial motions of the parties. Appellant's trial counsel acknowledged the case of Bergen, supra, 166 Cal.App.4th 161, "does indeed say that making honey oil, which is alleged [in count 3] to have been done in this case, would fall under Health & Safety Code [section] 11379.6, subdivision (a)." Counsel nevertheless maintained the rule of Bergen was inapplicable because the Bergen court "[did] not address at all whether the honey oil in question ... was made pursuant to the Compassionate Use Act." The prosecutor asserted there was no valid statutory or case law for the proposition that "medical marijuana recommendations ... can be a defense to the [concentrated cannabis] manufacturing charge." The court heard further arguments of counsel and deferred a ruling, stating, "I'll review [Bergen]." On March 2, 2010, the court heard additional defense arguments on the issue and ruled:

"Well, the Compassionate Use Act is a narrowly drafted statute. It does not provide a defense to manufacturing. And under People versus Berg[e]n the
facts in this case relating to Count 3 support the charge that has been brought in Count 3, which is manufacturing. This Court will not broaden the scope of the Compassionate Use Act by ruling it should apply to manufacturing. So that motion is denied."

E. CALCRIM No. 2330 As Given

CALCRIM No. 2330, as read to the jury, stated:

"Count 3, Defendant Donald Stiggins is charged in Count 3 with preparing concentrated cannabis, also known as butane honey oil, a controlled substance. To prove that the defendant is guilty of this crime, the People must prove that:
"One, the defendant prepared a controlled substance, specifically concentrated cannabis, also known as butane honey oil, using chemical extraction or independent chemical synthesis.
"And two, the defendant, knew of the substance's nature or character as a controlled substance."

F. Appellant's Contention on Appeal

Appellant contends (1) cultivation of marijuana within the meaning of Health and Safety Code section 11358 encompasses the manufacturing of concentrated cannabis; (2) the CUA allows the manufacturing of concentrated cannabis for personal medical needs; (3) the Bergen case applies only to illegal processing of marijuana; and (4) "applying a defense under the CUA to the manufacturing of concentrated cannabis for personal medical needs is consistent with the goal of the statute." (Initial capitalization omitted.)

G. Analysis

Health and Safety Code section 11362.5, subdivision (d) states:

"(d) 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."

"[T]he purpose informing subdivision (d) is twofold: (1) 'to ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of ... any ... illness for which marijuana provides relief' (Health & Saf. Code, § 11362.5, subd. (b)(1)(A)); and (2) '[t]o ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.' ([Health & Saf. Code,] § 11362.5, subd. (b)(1)(B), italics added)." (People v. Mower, supra, 28 Cal.4th at pp. 471-472, italics in original.) Health and Safety Code section 11362.5, subdivision (d) grants a defendant a limited immunity from prosecution, which not only allows a defense at trial, but also permits a motion to set aside an indictment or information prior to trial. Within its scope, Health and Safety Code section 11362.5, subdivision (d) renders possession and cultivation of marijuana noncriminal for a qualified patient or primary caregiver. (People v. Mower, supra, 28 Cal.4th at pp. 469-471.)

The Legislature (and the people through the initiative process) holds plenary power to define crimes and establish penalties for those crimes. The CUA initiative and Health and Safety Code section 11362.5 provide a defense for patients and primary caregivers to prosecution for only two criminal offenses regarding marijuana: Health and Safety Code section 11357 (possession) and Health and Safety Code section 11368 (cultivation). This defense is limited to the narrow circumstances approved by the voters in enacting Health and Safety Code section 11362.5 and does not allow the importation or cultivation of marijuana by large commercial enterprises. Sale and possession for sale of marijuana remain prohibited by Health and Safety Code sections 11360, subdivision (a) and 11359 regardless of whether the seller obtains a net profit therefrom. (People ex rel. Lungren v. Peron (1997) 59 Cal.App.4th 1383, 1400.)

In Bergen, the defendant appealed from a judgment of conviction upon plea of no contest to manufacturing concentrated cannabis by using butane to extract the resin (Health & Saf. Code, § 11379.6, subd. (a)). He contended he should have been charged under Health and Safety Code section 11358, which addresses processing resin from marijuana, instead of Health and Safety Code section 11379.6, subdivision (a). Division One of the Second Appellate District affirmed the judgment of conviction, concluding: "[W]hen, as here, the method used to extract the marijuana resin was by means of a chemical such as butane, [Health and Safety Code] section 11379.6 [subdivision] (a) applies over the more general statute punishing marijuana cultivation, harvesting or processing. ([Health and Saf. Code,] § 11358)." The appellate court pointed out that Bergen was not simply charged with producing or processing concentrated cannabis from marijuana plant material. Rather, he used a flammable solvent in the process of extracting the marijuana resin. This act - the use of a chemical in the extraction process - formed the basis of the charge for manufacturing concentrated cannabis under Health and Safety Code section 11379.6, subdivision (a). (Bergen, supra, 166 Cal.App.4th at pp. 164, 173.)

In reaching its conclusion, the Second District noted:

"As Bergen correctly points out, the Compassionate Use Act of 1996 ([Health & Saf. Code,] § 11362.5 et seq.) provides a defense for qualified patients and their primary caregivers to charges of possession of marijuana for personal medical use ([Health & Saf. Code,] § 11357) and to charges of cultivation of marijuana for medical use ([Health & Saf. Code,] § 11358). The act, however, provides no defense to a charge of producing concentrated cannabis by chemical extraction. (See [Health & Saf. Code,] § 11362.5, subd. (b)(2) ['Nothing in this section shall be constructed to supersede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marijuana for nonmedical purposes.'].) Accordingly, the Compassionate Use Act has no application to the present appeal." (Bergen, supra, 166 Cal.App.4th at pp. 172-173, fn. 6.)

Characterizing footnote 6 in Bergen as "dicta," appellant contends this court should not follow Bergen "[b]ecause appellant's manufacturing of concentrated cannabis also constituted cultivation of marijuana within the meaning of [Health and Safety Code] section 11358 [and] appellant's CUA defense that he performed that act for a personal medical need was a defense to a violation of [Health and Safety Code] section 11379.6, subdivision (a)." Division Two of the First Appellate District rejected a similar approach with respect to the transportation of marijuana (Health & Saf. Code, § 11360), stating:

"We think this carries matters much too far. We note that the statute specifically identifies only two penal provisions (out of five) from article 2 of division 10 of the [Health and Safety] Code, section 11357, dealing with possession, and [Health and Safety Code] section 11358, dealing with cultivation, etc. It would have been a simple matter for the drafters to have included a reference to [Health and Safety Code] section 11360 within subdivision (d) of [Health and Safety Code] section 11362.5. Thus, that subdivision could just as easily have read: '[Health and Safety Code] [s]ections 11357, 11358 and 11360 shall not apply to a patient ... who possesses, cultivates, or transports marijuana for the personal medical purposes of the patient' - but it doesn't. We may not infer exceptions to our criminal laws when legislation spells out the chosen exceptions with such precision and specificity. [Citations.] (People v. Trippet (1997) 56 Cal.App.4th 1532, 1550.)

Similarly, the drafters could have easily included a reference to Health and Safety Code section 11379.6, subdivision (a) within subdivision (d) of Health and Safety Code section 11362.5. The latter section, part of the CUA, refers only to possession of marijuana (Health & Saf. Code, § 11357) and cultivation of marijuana (Health & Saf. Code, § 11358) and we may not infer an additional exception where the people, by initiative, have chosen exceptions with precision and specificity. The trial court did not err in declining to instruct the jury in the defense's proffered modification to CALCRIM No. 2330.

III. THE TRIAL COURT DID NOT COMMIT REVERSIBLE ERROR BY FAILING TO INSTRUCT ON MISTAKE OF LAW WITH RESPECT TO THE CHARGE OF CONSPIRACY TO CULTIVATE MARIJUANA

Appellant contends the trial court committed reversible error by failing to give a defense-requested instruction on mistake of law with respect to count 1. In the alternative, appellant contends his trial counsel rendered ineffective assistance by waiving a reading of the defense instruction on mistake of law with respect to count 1.

A. Allegations of the Information

Count 1 of the first amended information alleged:

"ISABEL GARZA AND DONALD KEITH STIGGINS did, on or about March 26, 2009, in the County of Madera, State of California, commit a FELONY, namely, violation of Section 182(a)(1) of the Penal Code of the State of California, in that the said defendants did unlawfully conspire together and with another person and persons whose identity is unknown to commit the crime of cultivation of marijuana, in violation of Section 11358 of the Health and Safety Code, a felony; that pursuant to and for the purpose of carrying out the objectives and purposes of the aforesaid conspiracy, the said defendants committed the following overt act and acts at and in the County of Madera:
"OVERT ACTS:
"1. One or more co-conspirators drove to a remote site knowing marijuana growing supplies would be there.
"2. One or more co-conspirators possessed a usable amount of marijuana on his/her person.
"3. One or more co-conspirators brought drip line, PVC fittings, sprinkler adaptors, tubing, and many other irrigation supplies to a site where marijuana has been grown on a large scale before.
"4. One or more co-conspirators had 30 marijuana plants growing at his residence at the time."

B. Pretrial Motion

On March 2, 2010, appellant filed a motion in limine to present a mistake of law defense to the allegation that he entered into a criminal conspiracy to illegally cultivate marijuana, citing People v. Urziceanu (2005) 132 Cal.App.4th 747, 777 (Urziceanu). Appellant also requested that the jury be instructed consistent with his motion. At the March 2, 2010, hearing on the motion, the court ruled:

"The Court instructs on Health & Safety Code section 11362.5 as to conspiracy counts and mistake of law if it appears that the defendant is relying on that defense or if there is substantial evidence supportive of the defense and the defense is not inconsistent with the defendant's theory of
the case. So it really depends on what the evidence is and I don't know what that's going to be yet.
"Based on the evidence at the preliminary hearing and the statement Mr. Stiggins stated in court in August and the fact that there is no doctor on the defense witness list, I don't know if the evidence is going to support that instruction or not at this point. So I'm not going to rule that it does apply prior to hearing the evidence."

C. Proffered Defense Instruction

On March 4, 2010, appellant filed proposed special jury instructions, including one entitled, "Special Instruction #1: Mistake of Law." That instruction stated:

"The defendant is not guilty of Conspiracy to Cultivate Marijuana if he did not have the intent or mental state required to commit the crime because he had a good faith belief, based on the Compassionate Use Act and the Medical Marijuana Program, that his actions were legal.
"If the defendant's conduct would have been lawful as he believed it to be, and he had a good faith believe that it was lawful, he did not commit Conspiracy to Cultivate Marijuana.
"If you find that the defendant had a good faith belief that the Compassionate Use Act and the Medical Marijuana Program allowed him to cultivate marijuana and sell the excess to a cooperative, he did not have the specific intent or mental state required for Conspiracy to Cultivate Marijuana.
"If you have a reasonable doubt about whether the defendant had the specific intent or mental state required for Conspiracy to Cultivate Marijuana, you must find him not guilty of that crime."

D. Reported Conferences on Jury Instructions

Testimony concluded on March 4, 2010, and on March 8, 2010, the trial court and parties held a reported conference on jury instructions, including CALCRIM No. 3407 [defenses: mistake of law]. The following exchange occurred with respect to the proffered mistake of law instruction:

"THE COURT: Okay. And as to mistake of law, the instruction was requested by the People. [CALCRIM No.] 3407, is it withdrawn by the People?
"MR. SUTHERLAND [deputy district attorney]: Yes, your Honor.
"THE COURT: Okay. And originally Mr. Stiggins requested a mistake of law defense to Count 1 expecting the evidence to show that he was up there to cultivate marijuana, but he was reasonably mistaken as to the law regarding whether he could cultivate marijuana. The defense has turned out to be that he wasn't there to cultivate marijuana at all. He was there to plot a placer claim. [¶] Do you wish to be heard any further on that issue, the mistake of law defense or not defense, Mr. Jones [trial counsel for appellant].?
"MR. JONES: No, your Honor."

On March 9, 2010, the court and counsel met outside the presence of the jury prior to closing arguments and the following exchange occurred:

"MR. JONES: I submitted to the Court, it was actually the text of the proposed jury instructions that I had listed in my requests. It was called Defendant's Proposed Special Jury Instructions.... One was mistake of law, which we discussed.... [¶] ... [¶]
"THE COURT: All right. They were filed March 4th and they are in the Court file. Wasn't our jury instruction conference March 8th?
"MR. JONES: Yes, your Honor. I forgot to bring them up. I apologize. It's an oversight.
"THE COURT: All right. Special Instruction No. 1, mistake of law. Are you still requesting that? You withdrew it before.
"MR. JONES: No."

E. Appellant's Contention on Appeal

Appellant argues:

"The trial court refused to give the jury this instruction [on alleged mistake of law as a defense to conspiracy] because appellant did not admit to attempting to grow marijuana in the national forest. Because appellant maintained a good faith belief that he could lawfully grow marijuana in the national forest, he was entitled to rely on the mistake of law defense to the conspiracy charge regardless of whether he admitted to any particular act in furtherance of the charged conspiracy. Therefore the trial court erred by refusing to instruct the jury with regard to the mistake of law defense to conspiracy. The error was prejudicial because there was strong evidence that appellant was growing marijuana legally and that the jury would have
concluded appellant had a good faith belief that he could also grow marijuana in the national forest. Alternatively, appellant was denied the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments to the extent his trial defense attorney failed to request a mistake of law instruction for count one."

F. Analysis

1. Withdrawal of Instruction; Sua Sponte Duty

We initially note that appellant's trial counsel withdrew his special instruction No. 1 relating to alleged mistake of law and that his claim the trial court "refused to give this instruction" is not supported by the record. Appellant nevertheless contends the trial court should have instructed on the defense sua sponte. The trial judge has a duty to instruct as to defenses " 'that the defendant is relying on ..., or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.' [Citation.]" (People v. Breverman (1998) 19 Cal.4th 142, 157, italics in original, (Breverman).)

Here, special instruction No. 1 was based upon CALCRIM No. 3406 [mistake of fact] and Urziceanu, supra, 132 Cal.App.4th at pp. 775-779, a Third District case discussing the defense of good faith mistake of law to a charge of conspiracy to sell marijuana. The defense of mistake of law regarding marijuana cultivation in a national forest was inconsistent with appellant's claim that he and his acquaintances were present at Slide Creek to stake out a placer claim. Appellant contends "[t]he jury was entitled to believe appellant's statements to the law enforcement officers that he was in the forest to cultivate marijuana, even if appellant disavowed those statements during his testimony." Appellant overlooks the following instruction given as to count 1, conspiracy to commit cultivation of marijuana:

"Cultivation of marijuana is lawful if authorized by the Compassionate Use Act. In order for the Compassionate Use Act to apply, a defendant must produce evidence tending to show that his possession or cultivation of marijuana was for personal medical purposes with a physician's recommendation or approval. The amount of marijuana possessed must be reasonably related to the patient's current medical needs. If you have a
reasonable doubt about whether the cultivation intended by a defendant was unlawful under the Compassionate Use Act, you must find that defendant not guilty."

Even if we assume the foregoing instruction did not go far enough and that a mistake of law instruction was fully or partially consistent with appellant's conflicting testimony and ultimate defense, we are reminded of the observations of the Breverman court:

"[People v. Barton (1995) 12 Cal.4th 186] explained that '[f]ailure to ... instruct [on defenses not asserted by the defendant] will not deprive the jury of the opportunity to consider the full range of criminal offenses established by the evidence. Nor is the prosecution denied the opportunity to seek conviction on all offenses included within the crime charged. Moreover, to require trial courts to ferret out all defenses that might possibly be shown by the evidence, even when inconsistent with the defendant's theory at trial, would not only place an undue burden on the trial courts but would also create a potential of prejudice to the defendant. As we said in [People v. Sedeno (1974) 10 Cal.3d 703, 716-717, disapproved on other grounds in Breverman, supra, 19 Cal.4th at p. 165]: " 'Appellate insistence upon sua sponte instructions [concerning defenses] which are inconsistent with defense trial theory or not clearly demanded by the evidence would hamper defense attorneys and put trial judges under pressure to glean legal theories and winnow the evidence for remotely tenable and sophistical instructions.' " ' (Barton, supra, 12 Cal.4th 186, 197.)" (Breverman, supra, 19 Cal.4th at p. 157, italics in original.)

Appellant's varied explanations for his presence in an isolated area of the forest did not require the trial court to ferret out and instruct upon the defense of mistake of law.

2. Mistake of Law Defense to Conspiracy

Appellant contends mistake of law is a defense to conspiracy to cultivate marijuana. Generally, one cannot avoid conviction if his or her sole defense to the charging document is ignorance of the law. "The guilt of those who conspire to do an act which is prohibited by law is measured by their intent with reference to the act to be performed and not by the amount of their knowledge or ignorance of whether such acts are contrary to statute. [Citations.]" (People v. McLaughlin (1952) 111 Cal.App.2d 781, 789.)

Appellant cites the recent case of People v. Meneses (2008) 165 Cal.App.4th 1648 (Meneses) for the proposition that "[i]gnorance that a penal law prohibits one's conduct may also provide a defense." Appellant offers a selective reading of the Meneses case. Division Four of the First Appellate District, which rendered the opinion in Meneses, actually stated:

"A mistake of law, in its strict sense, means ignorance that the penal law (of which one stands accused) prohibits one's conduct - and ignorant on this point 'is almost never a defense.' (People v. Hagen [(1998) 19 Cal.4th [652, 660-661, fn. 4.)] There are rare instances where ignorance that a penal law prohibits one's conduct does provide a defense.... Ignorance that a penal law prohibits one's conduct may also provide a defense where one is charged with conspiracy to commit a crime that is not malum in se. (United States v. Ehrlichman (D.C. Cir. 1976) 178 U.S. App.D.C. 144 & fn. 17 [546 F.2d 910, 918-919].)" (Meneses, supra, 165 Cal.App.4th at pp. 1662-1663, italics in original.)

In Urziceanu, supra, 132 Cal.App.4th at pages 758-759, the defendant was charged with conspiracy to sell marijuana and being a felon in possession of a firearm and ammunition. Defendant claimed he created a legal cooperative to grow and supply medical marijuana for himself as a patient qualified to use it under the Compassionate Use Act (CUA) of 1996 (Health & Saf. Code, § 11362.5). The Third Appellate District held "defendant's mistake of law as to whether [the CUA] provided him with a defense constitutes a defense to the charge of conspiracy to sell marijuana." (Urziceanu, supra, at pp. 758-759.) The defendant could not prove a good faith mistake of law by arguing he was unaware of the precise statute he was violating. Nevertheless, because conspiracy requires a specific intent, a good faith mistake of law provided defendant with a defense. The Third District noted: "If the jury believed that defendant had a good faith belief, based on the Compassionate Use Act, that his actions were legal, this would negate the specific intent to violate the law required for a conspiracy conviction. That, ultimately, is a question of fact for a properly instructed jury." (Id., at p. 779.)

The record in the instant case does not reflect a good faith mistake of law with respect to cultivation of marijuana at Slide Creek. At trial, appellant denied that he and his companions were at Slide Creek to prepare the land for cultivation for marijuana. He further denied telling Agent Dorr that he planned on growing marijuana for sale. Rather, he claimed he and his companions went to Slide Creek to take necessary steps to file a placer claim on the area. Appellant said he ultimately filed a gold claim and placed a monument marker on the land at Slide Creek. The claim was filed with the State of California on November 10, 2009. Appellant's testimony simply did not reflect a good faith belief such as that cited by the Third District in Urziceanu.

3. Ineffective Assistance of Trial Counsel

Appellant lastly contends his trial counsel was ineffective by withdrawing or waiving the request to give special instruction No. 1.

Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has a right to the effective assistance of counsel; that is, he has a right to " 'the reasonably competent assistance of an attorney acting as his diligent conscientious advocate.' " (People v. Ledesma (1987) 43 Cal.3d 171, 215.) "The ultimate purpose of this right is to protect the defendant's fundamental right to a trial that is both fair in its conduct and reliable in its result. [Citations.]" (Ibid.)

A claim of ineffective assistance has two components: (1) the defendant must show counsel's performance was deficient, i.e., that it fell below an objective standard of reasonableness under prevailing professional norms; and (2) the defendant must establish prejudice as a result. (People v. Ledesma, supra, 43 Cal.3d at pp. 216, 217.) "Unless a defendant establishes the contrary, we shall presume that 'counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy.' [Citation.] If the record 'sheds no light on why counsel acted or failed to act in the manner challenged,' an appellate claim of ineffective assistance of counsel must be rejected 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.' [Citations.]" (People v. Ledesma (2006) 39 Cal.4th 641, 746.) To show prejudice, defendant must demonstrate there is a " 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' [Citation.]" (Id. at p. 746.)

An attorney's exercise of discretion in making tactical decisions regarding trial strategy must be both reasonable and informed. An informed decision is one made on the basis of reasonable investigation. Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable. (In re Visciotti (1996) 14 Cal.4th 325, 348.) We cannot evaluate alleged deficiencies in a trial counsel's representation solely on the defendant's unsubstantiated speculation. (People v. Bolin (1998) 18 Cal.4th 297, 334.)

" 'The trial court's duty to fully and correctly instruct the jury on the basic principles of law relevant to the issues raised by the evidence in a criminal case is so important that it cannot be nullified by defense counsel's negligent or mistaken failure to object to an erroneous instruction or the failure to request an appropriate instruction. (People v. Graham (1969) 71 Cal.2d 303, 317-319.)' " (People v. Oden (1987) 193 Cal.App.3d 1675, 1683.)

Here, defense counsel made an evident tactical decision to withdraw special instruction No. 1. He was not asked to explain that decision, and we cannot say there could be no satisfactory explanation. For example, trial counsel could have very well concluded that appellant's "placer claim defense" would have been unduly diminished had counsel insisted upon a reading of special instruction No. 1. Accordingly, appellant has failed to demonstrate counsel's performance was deficient and reversal for ineffective assistance is not required.

IV. THE TRIAL COURT DID NOT COMMIT REVERSIBLE ERROR BY FAILING TO INSTRUCT THE JURY ABOUT APPELLANT'S RIGHT TO CULTIVATE MARIJUANA FOR A PERSONAL MEDICAL PURPOSE UNDER HEALTH AND SAFETY CODE SECTION 11362.775?

Appellant contends the trial court committed reversible error by failing to give special instruction No. 4 and instruct the jury on his right to cultivate marijuana for a personal medical purpose pursuant to Health and Safety Code section 11362.775.

A. Proffered Defense Instruction

On March 4, 2010, appellant filed proposed special jury instructions, including one entitled, "Special Instruction #4: Provisions Allowing for Cooperative Cultivation of Marijuana." That instruction, based upon Health and Safety Code 11362.775 and CALCRIM No. 2370 [Planting etc., Marijuana (Health & Saf. Code, § 11358)], stated:

"Qualified patients who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions for Cultivation of Marijuana.
"Possession of marijuana is lawful if authorized by the Compassionate Use Act. In order for the Compassionate Use Act to apply, the defense must produce evidence tending to show that his possession or cultivation of marijuana was for personal medical purposes or as a member of a collective with a physician's recommendation or approval. The amount of marijuana possessed must be reasonably related to the patient's or the collective's current medical needs. If you have a reasonable doubt about whether the defendant's possession or cultivation of marijuana was unlawful under the Compassionate Use Act, you must find the defendant not guilty."

B. Reported Conferences on Jury Instructions

As noted above, testimony concluded on March 4, 2010, and on March 8, 2010, the trial court and parties held a reported conference on jury instructions. The following exchange occurred with respect to the proffered mistake of law instruction:

"[THE COURT:] Mr. Stiggins has requested instruction on the Compassionate Use Act, which if it applies only applies to Count 1 and Count 2. There is substantial evidence to support the conclusion ... he was in compliance with 11362.5 of the Health & Safety Code. The ... instruction on that defense is inconsistent with the defendant's theory of the
case because the testimony was that he was up there to plot a placer claim, not to cultivate marijuana. [¶] But the Court will err on the side of the defendant and give the instruction at his request even though it's inconsistent with his theory of the case. [¶] Do you disagree, Mr. Jones?
"MR. JONES: No, your Honor.
"THE COURT: Mr. Stiggins, do you agree with the position your attorney has taken on these cases?
"DEFENDANT STIGGINS: Yes."

On March 9, 2010, the court and counsel met outside the presence of the jury prior to closing arguments and the following exchange occurred regarding proffered defense instructions:

"THE COURT: Special Instruction No. 4, provisions allowing for cooperative cultivation of marijuana. Are you requesting that one?
"MR. JONES: Yes. I think the argument's going to be that if he made a statement that he was going to cultivate for purposes of sale ... if that's going to be argued in closing, I think it's an instruction with regard to cooperative cultivation would be proper.
"THE COURT: Is cultivation for sale alleged? Is there even such a crime? [I]s cultivation for sale different from cultivation, period?
"MR. SUTHERLAND [deputy district attorney]: Just possession for sale and cultivation.
"THE COURT: All right.
"MR. JONES: Well, then, it's unnecessary.
"THE COURT: So you withdraw Special Instruction No. 4
"MR. JONES: Yes."

C. Instructions Given

Prior to the arguments of counsel, the court instructed the jury in a number of instructions, including a modified portion of CALCRIM No. 2370, which stated with respect to count 1:

"Cultivation of marijuana is lawful if authorized by the Compassionate Use Act. In order for the Compassionate Use Act to apply, a defendant must produce evidence tending to show that his possession or cultivation of marijuana was for personal medical purposes with a physician's recommendation or approval. The amount of marijuana possessed must be reasonably related to the patient's current medical needs. If you have a reasonable doubt about whether the cultivation intended by a defendant was unlawful under the Compassionate Use Act, you must find that defendant not guilty."

With respect to count 2, the court read a modified portion of CALCRIM No. 2370 as follows:

"Again, attempted cultivation of marijuana is lawful if authorized by the Compassionate Use Act. In order for the Compassionate Use Act to apply, a defendant must produce evidence tending to show that his attempted cultivation of marijuana was for personal medical purposes with a physician's recommendation or approval. The amount of marijuana attempted to be cultivated must be reasonably related to the patient's current medical needs. If you have a reasonable doubt about whether a defendant's attempted cultivation of marijuana was unlawful under the Compassionate Use Act, you must find that defendant not guilty."

D. Appellant's Contention on Appeal

Appellant contends the CUA instructions given by the trial court were an inadequate substitute for his special instruction No. 4 because they "did not address appellant's right to associate with others to cultivate marijuana for medical reasons" pursuant to Health and Safety Code section 11362.775.

We initially note that the instructions given were virtually identical to special instruction No. 4, with the exception of the omitted first paragraph of the proffered instruction, which stated:

"Qualified patients who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions for Cultivation of Marijuana."

That paragraph was based upon section Health and Safety Code section 11362.775, which states:

"Qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and person with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate marijuana 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."

In view of the proffered special instruction No. 4 and the portion of CALCRIM No. 2370 actually given, we briefly review the CUA of 1996 (Health & Saf. Code, § 11362.5) and the Medical Marijuana Program Act of 2003 (MMPA) (Health & Saf. Code, §§ 11362.7 et seq.). In 1996, the California electorate approved Proposition 215 and adopted the CUA, which provides an affirmative defense to prosecution for the crimes of possession and cultivation where the marijuana is used for a patient's personal medical purposes. In 2003, the Legislature responded to reports of problems and uncertainties about the CUA by enacting the MMPA to clarify the scope of the application of the CUA. The Supreme Court recently held: "Although the MMP[A] did not literally amend the statute that established the CUA (that is, [Health & Saf. Code,] § 11362.5), the MMP[A] did add 18 new code sections that address the general subject matter covered by the CUA." (People v. Kelly (2010) 47 Cal.4th 1008, 1014.)

The MMPA specifies that collectives, cooperatives, or other groups shall not profit from the sale of marijuana. (People v. Hochanadel (2009) 176 Cal.App.4th 997, 1009.) Health and Safety Code section 11362.765, subdivision (a), governing criminal liability, states: "[N]or shall anything in this section authorize any individual or group to cultivate or distribute marijuana for profit." Health and Safety Code section 11362.775, governing criminal sanctions against qualified patients and others, states in pertinent part: "Qualified patients ... who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under [Health and Safety Code] [s]ection ... 11358

A trial court has no duty to instruct the jury on a defense unless it is supported by substantial evidence. (People v. Curtis (1994) 30 Cal.App.4th 1337, 1355.) As respondent points out, the instant record does not demonstrate that appellant's apparent effort to cultivate marijuana with Garza and Aguirre constituted a nonprofit enterprise with a nonprofit public dispensary or cannabis club. Although appellant testified he was involved with the Co-operative, he said he was not able to receive medical marijuana from that Co-operative and had not given or donated marijuana to that Co-operative. !(RT 449)! Further, nothing in the record demonstrated that Garza and Aguirre were "qualified patients" or "caregivers" within the meaning of the MMPA.

Absent substantial evidence to show that appellant and his companions met the minimum requirements of the MMPA, the trial court did not err in declining to give special instruction No. 4 and defense counsel did not render ineffective assistance by withdrawing the proffered instruction.

V. THE TRIAL COURT DID NOT COMMIT REVERSIBLE ERROR BY EXCLUDING TESTIMONY THAT APPELLANT BELIEVED HIS CULTIVATION OF MARIJUANA TO SELL TO CO-OPERATIVES WAS LAWFUL UNDER THE COMPASSIONATE USE ACT

Appellant contends the trial court committed reversible evidentiary error by excluding testimony concerning his belief about the legality of cultivation of marijuana to sell to cooperatives.

A. Challenged Passages of Testimony

The following exchange occurred during direct examination of appellant during the defense case:

"BY MR. JONES: Q. Now, Mr. Stiggins, statements have been attributed to you that you were planning to grow marijuana and sell it to cooperatives. Now, let me ask you a question with regard to that statement. In your opinion, are you able to either sell or give marijuana that you grow to cooperatives?
"MR. SUTHERLAND: Objection. Calls for a legal conclusion.
"THE COURT: Sustained."

The following exchange later during that same examination:

"[BY MR. JONES:] Q. Mr. Stiggins, if it were true that you told Agent Dorr that you were up there to grow marijuana, do you think that would have been legal?
"A. Yeah. It would have been completely legal after once I file for the land [as a placer gold claim] and I own it.
"MR. SUTHERLAND: Objection, your Honor.
"THE COURT: Sustained. The answer is stricken on the grounds of relevancy."

B. Appellant's Contention on Appeal

Appellant contends his belief about the legality of cultivation of marijuana in the national forest was relevant to a jury determination of specific intent for purposes of finding a conspiracy. He maintains the trial court erroneously struck his testimony because he "was not guilty of conspiracy to cultivate marijuana if he believed that it was lawful to engage in that activity for the purpose of providing marijuana to cooperatives. The testimony excluded by the trial court went directly to this defense theory of the case. Hence, the trial court erred by excluding this testimony."

C. Evidentiary Law

Evidence Code section 354 states:

"A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice and it appears of record that:
"(a) The substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means;
"(b) The rulings of the court made compliance with subdivision (a) futile; or
"(c) The evidence was sought by questions asked during cross-examination or recross-examination."

The rule of Evidence Code section 354 is necessary because, among other things, the reviewing court must know the substance of the excluded evidence in order to assess prejudice. (People v. Anderson (2001) 25 Cal.4th 543, 580-581.) Under California law, it is the burden of the proponent of evidence to establish its relevance through an offer of proof or otherwise. An offer of proof should give the trial court an opportunity to change or clarify its ruling and, in the event of appeal, would provide the reviewing court with the means of determining error and assessing prejudice. To accomplish these purposes, an offer of proof must be specific and must set forth the actual evidence to be produced rather than merely the facts or issues to be addressed and argued. (People v. Schmies (1996) 44 Cal.App.4th 38, 51, 53.)

No judgment shall be reversed on account of the erroneous exclusion of evidence unless it appears, upon examining the entire cause including the evidence, a miscarriage of justice has occurred. A miscarriage of justice should be declared only when the reviewing court is convinced after an examination of the entire case, including the evidence, that it is reasonably probable a result more favorable to the appellant would have been reached absent the error. (In re Marriage of Smith (1978) 79 Cal.App.3d 725, 751.) Expressed another way, where a trial court's ruling does not constitute a refusal to allow the defendant to present a defense, but merely rejected certain evidence concerning the defense, the ruling does not constitute a violation of due process. In that situation, the appropriate standard of review is whether it is reasonably probable the admission of the evidence would have resulted in a verdict more favorable to the defendant. (People v. Espinoza (2002) 95 Cal.App.4th 1287, 1317.)

D. Analysis

In the first challenged passage of testimony, the prosecutor objected on the ground that defense counsel's question called for a legal conclusion from appellant. The parties stipulated that appellant could testify as "an expert in growing marijuana" but no mention was made of his expertise in the legality of selling or giving marijuana to cooperatives. "If a witness is not testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is: (a) Rationally based on the perception of the witness; and (b) Helpful to a clear understanding of his testimony." (Evid. Code, § 800.) This rule requires that witnesses express themselves at the lowest level of abstraction and, wherever feasible, "concluding" should be left to the jury. (People v. Hurlic (1971) 14 Cal.App.3d 122, 127.) On review, we may not disturb the trial court's ruling on the admissibility of opinion evidence absent an abuse of discretion. (Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1599.)

In this case, the trial court sustained the prosecution objection, conducted several bench discussions with counsel, and allowed defense counsel to query appellant about his personal association and involvement with the Co-operative. During the course of that continued examination, defense counsel asked whether his classes at Oaksterdam University taught him "about when it is legal for you to cultivate marijuana for someone else." The court allowed appellant to answer in the affirmative. The trial court did not abuse its discretion in sustaining the initial objection of the prosecutor.

In the second challenged passage of testimony, defense counsel asked appellant the hypothetical question, "Mr. Stiggins, if it were true that you told Agent Dorr that you were up there to grow marijuana, do you think that would have been legal?" Appellant responded that his cultivation "would have been completely legal after once I file for the land and I own it." After the prosecutor interposed an objection, the court struck appellant's response on the ground of relevancy. The court subsequently observed at the March 8, 2010, reported conference on jury instructions: "The defense has turned out to be that he wasn't there to cultivate marijuana at all. He was there to plot a placer claim."

"Relevant evidence" means evidence having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. (Evid. Code, § 210.) A trial court has broad discretion in determining the relevance of evidence but lacks discretion to admit irrelevant evidence. (People v. Riggs (2008) 44 Cal.4th 248, 289.) Prior to the defense question about the legality of cultivating marijuana at Slide Creek, appellant explained what he and his companions were doing in the mountains on March 26, 2009:

"We were unloading some equipment that I needed to be brought up there. I was going to GPS my monument stones ... so I can take it up there to Sacramento and file my claim for my placer claim. And that's when Agent Dorr stopped us and we didn't get no further."

The balance of his testimony, prior to the prosecutor's objection, related to the tools, processes, and procedures for placer claims. The test of relevance is whether the evidence tends logically, naturally, and by reasonable inference to establish material facts. (People v. Fields (2009) 175 Cal.App.4th 1001, 1016.) Given appellant's articulate defense about establishing a placer claim at Slide Creek, the question about the legality of cultivation would not have elicited evidence having any tendency in reason to prove any disputed fact of consequence to the determination of the action. Moreover, appellant's response to counsel's question was the expression of an opinion on a question of law, i.e., the legality of cultivating marijuana on U.S. Forest Service land subject to a valid placer claim. Witnesses must ordinarily testify to facts, no opinions. An exception exists for expert witnesses. (Evid. Code, § 801.) In addition, nonexperts are allowed to state opinions in limited situations, such as where no particular scientific knowledge is required or where the matters observed are too complex to be expressed in any other manner. (Evid. Code, § 800; People v. Williams (1992) 3 Cal.App.4th 1326, 1332.) Here the parties stipulated that appellant could testify as an expert in the cultivation of marijuana. However, the question posed by counsel fell outside the scope of that stipulation.

The trial court properly exercised its broad discretion in determining the relevance of the evidence and struck appellant's answer. (People v. Fields, supra, 175 Cal.App.4th at p. 1016.)

VI. CUMULATIVE ERROR DOES NOT REQUIRE REVERSAL OF THE JUDGMENT

Appellant contends cumulative error deprived him of a fair trial.

Appellant has asserted a handful of errors, and we have found each claimed error to be either unfounded or harmless when considered separately. Considering them together, we likewise conclude that their cumulative effect does not warrant reversal of the judgment. (People v. Bolden (2002) 29 Cal.4th 515, 567-568.)

DISPOSITION

The judgment is affirmed.

Poochigian, J. WE CONCUR: Gomes, Acting P.J. Franson, J.