Opinion
C041568.
11-21-2003
THE PEOPLE, Plaintiff and Respondent, v. BRIAN BLAKE BADER, Defendant and Appellant.
A jury convicted defendant Brian Blake Bader of cultivating marijuana and possessing marijuana for the purpose of sale, and found he was not armed during the commission of these crimes. (Health and Saf. Code, §§ 11358, 11359; Pen. Code, § 12022, subd. (a)(1).) The trial court placed defendant on probation.
Further undesignated section references are to the Health and Safety Code.
Defendant raised a compassionate use defense at trial under section 11362.5, subdivision (d), claiming the marijuana was for his personal medical use. On appeal, he argues the trial court erred by instructing the jury that he had to prove this defense by a preponderance of the evidence. In line with a recent California Supreme Court decision, People v. Mower (2002) 28 Cal.4th 457 (Mower), we find this instructional error prejudicial and reverse both convictions. As a result, we need not discuss defendants remaining contentions.
BACKGROUND
The facts are largely undisputed. According to Dr. Edmond Freund, defendants treating physician of five years, defendant suffered from chronic pain and several other ailments. The record showed that defendant had chronic anxiety, Menieres disease, which caused vertigo and nausea, and Raynauds Syndrome, which caused painful spasms and sores on his fingertips. Defendant underwent a number of treatments, including surgery, to ameliorate the Raynauds Syndrome.
On September 26, 2000, defendant visited Dr. Frank Lucido, a general practitioner in Berkeley. After reviewing defendants medical records, Dr. Lucido prescribed marijuana for him. With the prescription, defendant could either purchase marijuana from a certified outlet or cultivate his own marijuana to meet his medical needs. Defendant opted to cultivate at his home, and initially purchased marijuana plant clones from a cannabis growers club in Oakland.
Oakland, like many other cities and counties, had adopted guidelines defining how much marijuana an individual patient could possess and grow to meet his or her medicinal marijuana needs. At the time defendant obtained his prescription, Oakland had the highest guideline, allowing one to possess six pounds of dried marijuana. According to defendants testimony, this guideline permitted one to grow 144 indoor plants at various stages of growth or 30 relatively mature outdoor plants. This was essentially confirmed by the prosecutions expert witness. This expert testified that Oakland subsequently cut its guidelines in half, from six pounds of dried marijuana to three pounds, or 72 indoor plants, or 20 outdoor plants. After defendant was arrested, he checked for a comparable guideline in his hometown of Lodi and found none.
Defendants cousin, Brent Schock, alerted the police to defendants growing operation, and they searched his residence pursuant to a warrant. The police found a total of 147 marijuana plants at the residence. Defendant was growing plants both indoors and outdoors.
Inside the house, defendant devoted one large room to growing marijuana. The police found 115 plants at various stages of growth. Fifty-two of the plants were approximately four to six inches high; 23 were one to three feet high; and 40 were two to four feet tall. Defendant had suspended grow lamps on a motorized track that allowed him to move the lamps above some of the plants. Further, the police found nine dried plants; five marijuana cigarettes in a prescription medicine container; 24.35 grams of marijuana on the kitchen table; some marijuana on a glass tray on the kitchen counter; and marijuana leaves and dryer lint in the garbage next to a clothes dryer.
Outside defendants house, police found 12 marijuana plants growing in the top of a cooler, each three to four inches tall, as well as five plants growing in buckets and six plants growing in the ground, each about three feet tall.
Police found no paraphernalia normally associated with the sale of drugs, such as plastic bags, scales, or buy-owe records. However, at trial, Schock testified that he had seen defendant sell marijuana out of his house. Schock also acknowledged being angry with defendant because he would not give him any marijuana. David Dietz testified that on the day defendant was arrested, Schock expressed such anger to Dietz. No evidence was presented showing that defendant was gainfully employed, and he only had about $250 in the bank. When the police entered the house, they found a scanner tuned to the primary frequency used by the Lodi Police Department.
The principal factual dispute arose over the projected yields from defendants cultivation. This issue went to whether the marijuana was solely for defendants personal medical use, a fact critical to both charges and to defendants defense. (§§ 11358, 11359, 11362.5 subd. (d).) Both the prosecution and the defense called expert witnesses in marijuana cultivation and each gave vastly different projections on the yield.
Earl Mick Mollica was the prosecutions expert. Mollica is a consultant with the U.S. Department of Defense who provides training on narcotics and substance abuse to Department personnel. He also had a long career in law enforcement, including working as a special agent for the California Department of Justice. In that role, Mollica reported on marijuana cultivation in the northern counties of California and designed a program called CAMP (Campaign Against Marijuana Planting) to deal with such cultivation.
Mollica projected defendants annual crop yield at six pounds from the six outdoor plants in the ground and 14.3 to 21 pounds from the 115 indoor plants that were growing at the time. These projections were apparently based on his experience with cultivation as a peace officer, as well as from the average projected yields in a 1992 federal Drug Enforcement Administration study entitled "Cannabis Yields" (the DEA study). This study applied only to outside plants. Mollicas projections on indoor plant yields were based on experience and worldwide averages.
Mollica did not include in his projections the 17 plants that were found growing in containers outside defendants house because it was not clear whether they would be grown outside or brought inside. Given that these plants were in containers and not in the ground, they easily could have been brought inside. Uncertainty of their future location prevented Mollica from making an accurate projection as to their yield.
Referring to a study shown him by defendants counsel, Mollica also testified that marijuana is more potent when inhaled than when ingested. To get the same effect, one must eat much more marijuana than one would smoke. Dr. Lucido testified that defendant preferred eating marijuana or inhaling vaporized marijuana. However, as the People pointed out, police found no food with marijuana, but did find marijuana cigarettes.
Christopher P. Conrad testified as the defense expert at trial. Conrad is an author and consultant on marijuana and cultivation. During his testimony, he relied heavily on formulas outlined in the DEA study to estimate the yield from defendants plants. Conrad concluded that, based on their density, the six outdoor plants in the ground would annually produce between one and one and a half pounds total. Conrad, like Mollica, did not include in his yield projections the 17 plants found outside in containers. Even though the DEA study was conducted on outdoor plants, Conrad argued the same principles could apply to the much smaller indoor plants. He concluded the indoor plants would yield about the same as the outdoor plants, one to one and a half pounds total.
Thus, the defense concluded the marijuana cultivation would produce no more than three pounds over the course of a year, while the prosecution concluded the cultivation would produce no less than 20 pounds.
DISCUSSION
Defendant raised a compassionate use defense against the section 11358 cultivation charge. (§ 11362.5, subd. (d).)
This defense is part of the Compassionate Use Act of 1996, which was enacted "[t]o ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate[.]" (§ 11362.5 et seq.) Section 11362.5, subdivision (d), sets forth the defense: "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 patients 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."
Consistent with this defense, the trial judge instructed the jury according to the then-current version of CALJIC No. 12.24.1 (1999 rev.). This instruction required defendant to prove the above elements by a preponderance of the evidence.
As both parties concede, and as the Supreme Court concluded after the trial in this matter, the trial court erred by giving the jury this instruction. (Mower, supra, 28 Cal.4th at pp. 481, 484.) Because a defendant need only raise a reasonable doubt as to the facts underlying the compassionate use defense, the Supreme Court in Mower concluded the trial court there erred by instructing the jury that a defendant must prove those facts by a preponderance of the evidence. (Id. at p. 484.) In light of this acknowledged instructional error, the question here becomes whether the error was prejudicial.
If instructional error violates the federal Constitution, a reversal results unless it is shown "beyond a reasonable doubt that the error . . . did not contribute to the verdict obtained." (Chapman v. California (1967) 386 U.S. 18, 24 .) However, if the error violates California law, a reversal results if "it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836.) In Mower, since the court concluded the instructional error was prejudicial even under the more forgiving Watson standard, there was no need to consider whether the Chapman standard applied. (Mower, supra, 28 Cal.4th at p. 484.) Because the facts and the error in the instant case mirror those in Mower, we come to the same conclusion.
As in Mower, several facts elemental to the compassionate use defense are not in dispute here. Defendant was a patient; defendant possessed and cultivated marijuana; defendant did so on the recommendation of a physician. What was in dispute, here and in Mower, was whether defendant possessed and cultivated marijuana entirely for his own "personal medical purposes." (§ 11362.5, subd. (d); Mower, supra, 28 Cal.4th at p. 484.)
In Mower, the defendant told detectives that he grew marijuana for himself and for two other patients who also had prescriptions. Later, the defendant denied this statement and said all the marijuana was for his own personal use. (Mower , supra, 28 Cal.4th at p. 466.) In the instant case, there was also evidence that defendant cultivated the marijuana for purposes other than personal medical use. The prosecution showed that defendants electric bill had been inflated since October 2000, suggesting a long growing period until his arrest in May 2001. As the prosecution pointed out, no evidence was presented showing that defendant was gainfully employed. Further, defendants cousin, Brent Schock, who alerted the police to defendants growing activities, testified that he saw defendant sell marijuana.
But, Schocks credibility was called into question. Schock testified to being angry when he called the police on defendant because defendant would not give him any marijuana. David Dietz confirmed this. Schock was also impeached with evidence of prior felony DUI convictions.
Thus, both here and in Mower, because of conflicting evidence regarding personal use, the issue of personal use hinged on the probable yield from the cultivation. (See Mower, supra, 28 Cal.4th at p. 485.) Here, defendants expert relied on guidelines from the DEA study in making a garden and plant-specific calculation of defendants likely yield. He calculated the combined yield of indoor and outdoor plants at between two and three pounds per year. Conversely, the prosecutions expert concluded the total yield would not be less than 20 pounds. Speaking generally about the average yield from outside plants, the prosecutions expert stated "we know that we can conservatively get a pound of bud only off that plant at harvest time, somewhere late August . . . ." Further, he opined that the indoor plants would yield between two and six ounces each.
A similar dramatic discrepancy arose in Mower. There, the defendants expert concluded that the defendants 31 plants would yield about 4.35 pounds. The prosecutions expert concluded the plants would yield between 31 and 62 pounds. (Mower, supra, 28 Cal.4th at p. 466.) The Mower court did not identify the sources relied on by each expert, but simply noted "[t]he evidence showed that the yield of the plants was uncertain, based as it was on various agricultural and other assessments and projections. In light of such uncertainty, the jury might have entertained a reasonable doubt in defendants favor." (Id. at p. 485.)
Given the prosecution witnesss projection of one to two pounds per plant, it appears that defendant Mowers 31 plants were outside plants. However, this fact is not clear from the decision.
Here, as in Mower, the jury reasonably could have relied on the testimony of either expert witness. The defense expert relied on his own experience and the DEA study, which concluded that yield had to be calculated by looking at the circumstances of the specific plants in question. Meanwhile, the prosecutions expert relied on the DEA study as well as on his experience with average plant yields from his years in law enforcement. The contrary conclusions of the expert witnesses on the yield of defendants plants were based on "various agricultural and other assessments and projections." (Mower, supra, 28 Cal.4th at p. 485.) If the jury had been instructed that defendant only had to raise a reasonable doubt with respect to the defense, there is a reasonable probability that defendant would have received a more favorable verdict. (Id. at pp. 484-485.) Therefore, defendants conviction for cultivation of marijuana must be reversed.
Defendants conviction for possession for sale must also be reversed. We recognize that the compassionate use defense of section 11362.5, subdivision (d), by its terms, applies only to the offenses of cultivation (§ 11358) and simple possession (§ 11357), not the offense of possession for sale (§ 11359). (See § 11362.5, subd. (d); see also this courts decision in People v. Jones (2003) 112 Cal.App.4th 341.) Nevertheless, the pivotal issue regarding defendants possession for sale charge was whether defendant possessed the marijuana for his personal medicinal purposes (compassionate use), or possessed it with the specific intent to sell (possession for sale). A specific intent to sell is an element of the offense of possession of marijuana for sale (§ 11359). (See People v. Saldana (1984) 157 Cal.App.3d 443, 457-458; see also CALJIC Nos. 12.20, 12.21, 12.06, 12.24.1.) But the erroneous CALJIC No. 12.24.1 instruction given here imposed upon defendant an improperly high burden in countering this element. This is because the instruction improperly required defendant to show by a preponderance of the evidence that he cultivated (and thereby possessed) the marijuana for his personal medicinal purposes rather than with intent to sell. Defendant only had to raise a reasonable doubt in this respect. (Mower, supra, 28 Cal.4th at p. 484.)
Furthermore, the record shows the jury found defendant guilty on the possession for sale charge after finding him guilty of the cultivation charge. The jury returned the guilty verdict for cultivation of marijuana on May 2, 2002, and the guilty verdict for possession for sale a day later. This sequence strongly suggests that the jury considered the possession for sale charge only after concluding defendant had illegally cultivated marijuana. Operating under this presumption, the jury was virtually compelled to find him guilty of possessing the marijuana for sale.
While there was evidence that defendant possessed and cultivated marijuana for purposes other than personal medical use, it was not overwhelming. Through the compassionate use defense, defendant only needed to raise a reasonable doubt with respect to both charges. Having an opportunity to properly present that defense would have gone a long way to raising a reasonable doubt for both cultivation and possession. It is reasonably probable that, absent the instructional error, the jury would have given defendant a more favorable verdict.
Because defendants two convictions must be reversed for the instructional error, we need not reach defendants other claimed errors.
DISPOSITION
The judgment is reversed.
We concur: HULL, J. and ROBIE, J.