Opinion
A147071
06-29-2018
THE PEOPLE, Plaintiff and Respondent, v. URIEL RUBEN CENDEJAS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR307740)
Defendant Uriel Ruben Cendejas appeals a judgment entered upon a jury verdict finding him guilty of possession of marijuana for sale. He contends the trial court erred in failing to instruct the jury on a medicinal marijuana defense and that one of his conditions of probation is unconstitutionally vague and overbroad. We shall modify the probation condition and otherwise affirm the judgment.
I. BACKGROUND
A. Prosecution Case
Police officers stopped defendant as he was driving and searched him pursuant to a warrant. Defendant had a little over $800 in cash in his pants pockets, mostly in $20 bills.
Another police officer searched defendant's home. In a walk-in closet, under a fluorescent lighting assembly, he found plastic trays with 164 immature marijuana plants. In a second bedroom, there was an "indoor marijuana grow," with mature marijuana plants on two tables that were approximately six feet by four feet in size. The window was covered in foil reflective sheeting, and there were electrical assemblies, a lighting system, an irrigation system, and an air filtration system. In the kitchen was a plastic bag containing "shake," or marijuana leaves, stems, and buds that had been ground together, and four bags of processed marijuana bud. A digital scale, with green plant pieces on it, and empty plastic baggies were in the kitchen. Six immature marijuana plants were found on the patio in planting bags. A car in the garage contained two plastic zipped baggies containing marijuana.
Detective Dustin Willis of the Vacaville Police Department testified as an expert on when marijuana is possessed for sale and on the cultivation of marijuana. He had looked at the text messages on defendant's cell phone. An outgoing message to a contact named Danny said, "I got one more QP left, if you're interested in." The response was, "I'm but probably not until Wednesday when I get paid." Willis testified that the term "QP" referred to a quarter-pound amount of marijuana or other controlled substances. A message from a contact named Frank said, "K tree? ;)" Tree was a common reference to marijuana. Frank then texted, "Got any? ;)" and the outgoing response said, "yul." Frank responded, "I'm here chillin' in garage. If you want to stop by, I got some $," and the outgoing response was "OMW," which typically meant "On My Way." Another text conversation with a contact named Markus began with Markus texting, "How much for lil ones?" The response was the number eight. Another text exchange with Markus began with defendant saying, "I got a slab of babies, cherry pie, 100 fo 250." The term "a slab of babies" typically referred to a tray of immature marijuana plants, and "cherry pie" referred to a common strain of marijuana. "100 fo 250" meant he would be willing to sell 100 of the plants for $250. Markus replied, "Any purp?," using a shorthand term for "purple," a name associated with certain strains of marijuana, often more potent strains. Defendant replied, "No."
Defendant later testified he intended to write "yup."
A message from defendant's phone to someone called Kalsik V said, "U get some tree already," and Kalsik V responded, "Yes, sir. It's all good playa," then "got some already." A message from "Aracelia" Abbot said, "My credit's still good lol?"—or "laugh out loud"—to which defendant responded, "I'm out of tree." Abbot replied, "All of a sudden," and defendant said, "All I got is two zones, and that's my personal." The term "zones" referred to an ounce amount of a controlled substance, including marijuana; the message indicated to Detective Willis that defendant meant he had only two ounces of marijuana and that they were for his personal use.
Detective Willis noted other text messages on defendant's phone. One incoming text from an unnamed person said, "Hey, I got some weed to see if you can get it off," which Willis interpreted to mean the person had some marijuana and was asking defendant to sell it. Another message from defendant's phone to someone named Ramon said, "I got your bud candy, boss." The reply said, "Lol. Where you at." "Bud candy" appeared to be a reference to processed marijuana.
Willis interviewed defendant. Defendant told him he used marijuana for medical reasons, to treat anxiety, insomnia, and pain resulting from a burn injury he sustained when he was a child, for which he had received skin grafts. He had a recommendation from his doctor but not a state-issued marijuana identification card. He said he smoked a "blunt" of two or three grams a day. He later said he had six to eight "blunts" or "joints" a day, for a total of a half-ounce to one ounce, or 10 to 12 grams. He said he used close to two pounds of marijuana a month. He did not weigh his dosages. He said he was not a caregiver for anyone else. He had been growing marijuana for about seven months, he had had two or three harvests, and his largest harvest had been three pounds. He received a quarter-ounce to an ounce of marijuana from each plant.
Defendant's explanation of what he did with the marijuana he did not use shifted as the interview progressed. He first said he disposed of the leftover product in the garbage disposal, he never sold his excess marijuana to dispensaries, he did not grow marijuana with anyone else, and he did not provide marijuana to anyone else, including other patients. However, when Willis mentioned that defendant's text messages suggested he sold marijuana, defendant said, "[I]f someone has asked me for some and I've had extra, then I would," but only after they showed him a card. He had never sold more than two ounces. He charged about $100 an ounce. He did not sell marijuana more than once a month.
Defendant said he was a self-employed window tinter and made between $2,500 and $4,000 per month. He also received compensation for his childhood injury of $ 1,500 per month, and an additional $100,000 every four or five years. After paying bills, he had between $2,000 and $3,000 a month left.
Detective Willis opined that the marijuana found at defendant's home was intended for sale as well as for personal use. He based his opinion on defendant's inconsistent statements regarding whether he sold his excess marijuana; the fact that defendant's estimates of how much marijuana he used at a time seemed extremely high; the fact that the yield of the marijuana at defendant's home exceeded his stated use; and the fact that defendant appeared to have underestimated the yield of his plants. Willis estimated defendant's plants would yield about 18 pounds of marijuana a year, which was more than medical users would generally need; this suggested defendant was growing marijuana for sale. Willis also testified that defendant's text messages indicated he was distributing marijuana, and that scales were typically found where people were distributing controlled substances, including marijuana. Defendant's possession of $800, primarily in $20 bills, was consistent with the proceeds of street-level drug transactions.
B. Defense Case
Defendant testified in his own defense. He had a medical marijuana recommendation, which he used because of pain resulting from burns he suffered as a child. He ran his own business as a window tinter, and worked two days a week. He dosed himself with marijuana throughout the day on the days he did not work; on the days he worked, he smoked from 3:00 in the afternoon until 2:00 in the morning. He made marijuana brownies or cookies, and smoked and "vaped" marijuana. He did not measure the doses when he smoked, but used the scale to measure them when he cooked with marijuana. He used "shake" to make brownies and cookies.
Defendant testified he had been growing marijuana for about seven months because it was expensive to get it through a delivery service or dispensary. He said he did not sell marijuana for cash, but would trade marijuana with a few of his friends when one of them was low on supplies.
Defendant explained that some of his text messages did not actually indicate he was selling marijuana. He testified that, after Danny sent a text message saying he was interested in defendant's "QP" after he got paid, defendant called him and told him he did not need money. Danny had a medical recommendation to use marijuana. When Frank texted to ask if defendant had any "tree" and "If you want to stop by, I got some $," he was referring to repaying money defendant had lent him. Defendant quoted Markus "8" in response to the question "How much for lil ones?" and told him the price of a "slab of babies" because Markus was planning to start growing marijuana on his own and defendant planned to give him a few plants. The price defendant quoted was intended to reimburse him for materials and electricity; he was not trying to make a profit. Markus had a medical recommendation to use marijuana. "Bud candy" was a nutrient used for growing marijuana. He did not give or sell marijuana to Abbot; they simply smoked together. The question "My credit's still good lol?" was a joke; defendant responded by saying he was "out of tree" because he knew Abbot wanted to come over and smoke.
Defendant testified that he had an informal agreement with Markus and Danny to trade marijuana in order to avoid paying dispensaries. He considered them close friends but did not know their last names. He did not trade marijuana with or sell it to anyone else, and he did not intend to profit from the marijuana he was growing.
Defendant testified that the $800 cash in his possession at the time of his arrest was from his paycheck, and that he paid all of his bills in cash or money order.
Chris Conrad testified for defendant as an expert on cannabis cultivation for personal consumption, the medical use of marijuana, and cannabis yields. He testified that a collective is a group of qualified patients or their caregivers who associate for the purpose of cultivating medical marijuana for medical use. Formal collectives obtained business licenses and other state documents, collected medical recommendations of members, and had a membership agreement. Informal collectives could be made up of family members or a group of friends, who all had medical recommendations, and who divided up marijuana among themselves. Such collectives generally used very little paperwork. Trading marijuana was consistent with being a member of a collective. Conrad testified that cherry pie was a strain of marijuana with a relatively high proportion of cannabidiol, or CBD, which had medical benefits but no psychoactive effect, and a lower proportion of tetrahydrocannabinol, or THC, which had a psychotropic effect. A patient would commonly use a digital scale when baking with marijuana.
Conrad testified that immature marijuana plants would typically sell for between $8 and $20; $2.50 per plant (or 100 plants for $250 dollars) was an extremely low price, and would render almost no profit to the seller. A price of $100 per ounce for marijuana was also extremely low.
C. Verdict and Probation
Defendant was charged with one count of cultivating marijuana (Health & Saf. Code, § 11358) and one count of possession of marijuana for sale (§ 11359). The jury found him not guilty of cultivating marijuana, and not guilty of the lesser included offense of simple possession of marijuana (§ 11357). It found him guilty of possession of marijuana for sale.
All statutory references are to the Health and Safety Code.
The trial court suspended imposition of sentence and placed defendant on formal probation for three years. Among the conditions of probation was a prohibition on using "mood altering substances like spice or salvia."
II. DISCUSSION
A. Instruction on Medical Marijuana Defense
Defendant contends the trial court erred in failing to instruct the jury sua sponte that the Medical Marijuana Program Act (§ 11362.7 et seq.; MMPA) provided a defense to possession of marijuana for sale. Even in the absence of a request, a court must instruct the jury on "general principles of law that are closely and openly connected with the facts of the case," including "defenses that are raised by the evidence." (People v. Marquez (1992) 1 Cal.4th 553, 581.)
California has two statutory schemes governing medical marijuana. The first, the Compassionate Use Act of 1992 (§ 11362.5; CUA), allows a patient to grow or possess his or her own marijuana, or to have a caregiver possess or grow marijuana for the patient. (People v. Urziceanu (2005) 132 Cal.App.4th 747, 768 (Urziceanu).) The second, the MMPA, is broader; it "also exempt[s] those qualifying patients and primary caregivers who collectively or cooperatively cultivate marijuana for medical purposes from criminal sanctions for [various crimes, including possession for sale]." (Id. at p. 785.) To this end, section 11362.775, subdivision (a) provides that "qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate cannabis for medicinal purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570." As explained in Urziceanu, this provision "contemplates the formation and operation of medicinal marijuana cooperatives that would receive reimbursement for marijuana and the services provided in conjunction with the provision of that marijuana." (Id. at p. 785.)
Defendant's list of proposed jury instructions did not include instructions on the CUA (CALCRIM No. 3412) or collective or cooperative cultivation under the MMPA (CALCRIM No. 3413). During the colloquy about jury instructions, the trial court stated, "I will need to insert 3412 and I think 3413. Even though I do agree it's a stretch, there is some evidence in the record about cultivation and informal collectives. So I do intend to give that."
The trial court instructed the jury pursuant to CALCRIM No. 3412: "Possession or cultivation of marijuana is lawful if authorized by the Compassionate Use Act. The Compassionate Use Act allows a person to possess or cultivate marijuana for personal medical purposes or as the primary caregiver of a patient with a medical need when a physician recommended or approved such use. The amount of marijuana possessed or cultivated must be reasonably related to the patient's current medical needs. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant was not authorized to possess or cultivate marijuana for medical purposes. If the People have not met this burden, you must find the defendant not guilty of this crime. [¶] A primary caregiver is someone who has consistently assumed responsibility for the housing, health or safety of a patient who may legally possess or cultivate marijuana."
The court also instructed pursuant to CALCRIM No. 3413 as follows: "Cultivating marijuana is lawful if authorized by the Medical Marijuana Program Act. The Medical Marijuana Program Act allows qualified patients and their designated primary caregivers to associate within the State of California to collectively or cooperatively cultivate marijuana for medical purposes, for the benefit of its members but not for profit. [¶] In deciding whether a collective meets these legal requirements, consider the following factors: [¶] 1. The size of the collective's membership; [¶] 2. The volume of purchases from the collective; [¶] 3. The level of members' participation in the operation and governance of the collective; [¶] 4. Whether the collective was formally established as a nonprofit organization; [¶] 5. Presence or absence of financial records; [¶] 6. Accountability of the collective to its members; and [¶] 7. Evidence of profit or loss. [¶] There is no limit on the number of persons who may be members of a collective. [¶] Each member of the collective does not need to actively participate in the cultivation process. It is enough if a member provides financial support by purchasing marijuana from the collective. [¶] A qualified patient is someone for whom a physician has previously recommended or approved the use of marijuana for medical purposes. [¶] Collectively means involving united action or cooperative effort of all members of a group. [¶] Cooperatively means working together or using joint effort toward a common end. [¶] Cultivate means to foster the growth of a plant. [¶] A primary caregiver is someone who has consistently assumed responsibility for the housing, health or safety of a patient who may legally possess or cultivate marijuana. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant was not authorized to cultivate marijuana for medical purposes. If the People have not met this burden, you must find the defendant not guilty of this crime."
Defendant contends the instruction did not inform the jury that the MMPA provided a defense to possession of marijuana for sale. In the circumstances of this case, we disagree. Defendant is correct that the MMPA provides a defense to possession of marijuana for sale (§ 11359) as well as cultivation of marijuana (§ 11358). (§ 11362.775, subd. (a).) The MMPA instruction given the jury, CALCRIM No. 3413, did not specifically mention possession of marijuana for sale. However, we see no possibility that the jury mistakenly believed that, if exchanges of marijuana for anything of value took place only as part of the activities of a collective authorized by the MMPA, defendant could be found guilty of possession of marijuana for sale. The court gave the MMPA instruction to the jury immediately after a general instruction, CALCRIM No. 3500, that referred to both counts, cultivation of marijuana and possession for sale of marijuana. The instruction itself informed the jury that the MMPA "allows qualified patients and their designated primary caregivers to associate within the State of California to collectively or cooperatively cultivate marijuana for medical purposes, for the benefit of its members, but not for profit"; that in deciding whether a collective met those legal requirements, the jury should consider, inter alia, the "volume of purchases from the collective," the "[p]resence or absence of financial records, the evidence of "profit or loss"; and, most significantly, that each member need not actively participate in cultivation, but that "[i]t is enough if a member provides financial support by purchasing marijuana from the collective." (Italics added.) This instruction did not state that it applied only to the cultivation charge, and it leaves no doubt that the lawful activities of a collective may include sales and purchases of marijuana, as long as they meet the requirements of the MMPA.
The closing arguments to the jury reinforce this conclusion. (See, e.g., People v. Hughes (2002) 27 Cal.4th 287, 341 ["Viewing together the instructions, counsel's legally correct arguments, and the evidence, we do not believe that it is reasonably 'likely the jury was "misled to defendant's prejudice" ' or that the jury would have understood [the instruction] [to preclude] consideration of his primary defense."].) In discussing the MMPA defense, defense counsel argued that nothing in defendant's text messages showed an intent to profit and that defendant's testimony showed he did not need to sell marijuana to make a profit because he had a legitimate source of income. In rebuttal, the prosecutor noted that defendant had said he did not know Danny's or Markus's last names, and argued that either (1) defendant was selling marijuana to customers, rather than to close friends as part of a collective; or (2) defendant knew their last names, was willing to lie to the jury, and should be treated as an untrustworthy witness. The prosecutor went on to argue that the relevant factors—such as the size of the membership, the volume of purchase, the level of participation in the operation and governance of the collective, the presence of financial records, the accountability of the collective to its members, and the evidence of profit or loss—did not show the alleged collective met the legal requirements of the MMPA. (CALCRIM No. 3413; see People v. Jackson (2012) 210 Cal.App.4th 525, 538-539 [setting out factors].) He made no suggestion that the MMPA would not provide a defense to both of the crimes with which defendant was charged if its requirements were met. There is no basis to conclude the jury was misled. (Compare People v. Orlosky (2015) 233 Cal.App.4th 257, 273 [marijuana possession and cultivation convictions reversed where trial court refused to instruct jury on collective cultivation defense].)
In the circumstances, we reject defendant's contention that the trial court failed to instruct the jury fully on the MMPA defense. For the same reason, we likewise reject his contention that his counsel provided ineffective assistance by failing to request an instruction on the MMPA defense that applied to the charge of possession of marijuana for sale.
B. Probation Condition
Among the conditions of probation, the trial court ordered: "He will totally abstain from the use of illegal drugs. He will not [] possess a medical marijuana card. He will not use mood altering substances like spice or salvia." Defendant contends the prohibition on using "mood altering substances like spice or salvia" is unconstitutionally vague. We agree.
" ' "In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety. . . ." ' " (People v. Nice (2016) 247 Cal.App.4th 928, 944, review granted Aug. 24, 2016, review dismissed Mar. 22, 2017, S235635.) However, a probation condition may be challenged on the ground that it is unconstitutionally vague or overbroad. (Id. at pp. 944-945.) "[T]he underpinning of a vagueness challenge is the due process concept of 'fair warning.' [Citation.] The rule of fair warning consists of 'the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders' [citation], protections that are 'embodied in the due process clauses of the federal and California Constitutions. [Citations.]' [Citation.] The vagueness doctrine bars enforcement of ' "a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application." [Citation.]' [Citation.] . . . [¶] A probation condition 'must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated,' if it is to withstand a challenge on the ground of vagueness." (In re Sheena K. (2007) 40 Cal.4th 875, 890.)
We conclude that the reference to "mood altering substances like spice or salvia" does not meet this standard. We cannot determine from the condition what other substances might fall within the proscription, and there is no basis to conclude defendant was given adequate notice of what was required of him. We shall therefore order the condition modified to prohibit defendant from using spice or salvia, rather than substances "like spice or salvia."
For that matter, the probation conditions do not prohibit the use of alcohol, another mood altering substance.
Defendant does not contend the terms "spice" and "salvia" in themselves are unconstitutionally vague.
III. DISPOSITION
The condition of probation prohibiting defendant from using "mood altering substances like spice or salvia" is modified to read: "Defendant will not use spice or salvia." In all other respects, the judgment is affirmed.
/s/_________
Schulman, J. We concur: /s/_________
Streeter, Acting P.J. /s/_________
Reardon, J.
Judge of the Superior Court of California, City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------