Opinion
H042914
03-24-2017
THE PEOPLE, Plaintiff and Respondent, v. DUC VINH DO, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1480033)
During a traffic stop, police found a quantity of marijuana on the backseat of defendant Duc Vinh Do's car. A jury convicted defendant of one felony count of transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)) and one misdemeanor count of possessing more than 28.5 grams (one ounce) of marijuana (§ 11357, subd. (c)) as a lesser-included offense of possession of marijuana for sale. The jury acquitted defendant of possession of marijuana for sale (§ 11359; a felony) but rejected his defense based on the Compassionate Use Act of 1996 (§ 11362.5) (CUA).
Further undesignated statutory references are to the Health and Safety Code.
Defendant contends his conviction for transportation of marijuana must be reversed, and he may not be retried for that offense, because the 2015 amendment to section 11360 makes transportation for sale an element of the crime and the jury found that defendant did not possess the marijuana for sale. The Attorney General concedes the amendment applies retroactively to defendant and that defendant may not be retried on the transportation count. We will accept the Attorney General's concessions and reverse the judgment on the transportation count.
Although the trial court instructed the jury with a version of CALCRIM No. 3412, the standard instruction on the CUA defense, defendant contends the trial court erred in refusing to give his Proposed Jury Instruction No. 2, a supplemental instruction based on People v. Windus (2008) 165 Cal.App.4th 634 (Windus) that set forth additional rules applicable to his CUA defense. We review the proposed instruction line by line, breaking it down into four component parts. We will conclude that the trial court erred when it failed to instruct the jury in accordance with Windus that nothing in the CUA requires the defendant to periodically renew a doctor's recommendation or approval to use medical marijuana and that the CUA does not provide that such a recommendation expires after a certain period of time. We reject defendant's claims of error related to the other components of his proposed instruction. Since we conclude the instructional error was not harmless, we will also reverse the judgment on the possession count.
FACTS
Prosecution Case
Testimony of San José Police Officer Maria Solomon
Officer Maria Solomon testified that while on patrol around 9:20 p.m. on March 21, 2014, she and Officer Dote pulled defendant over after they determined that the registration on his car had expired two years before. As Officer Dote spoke to defendant, both officers noticed a strong odor of marijuana coming from the car. The officers asked defendant to step out of the car. Defendant gave the officers his name and said he had a cannabis card in his wallet. Officer Solomon asked defendant if he had anything illegal in the car and defendant said he had about a pound of "weed" on the back seat.
Defendant gave the officers permission to search the car. Officer Solomon found almost a pound of marijuana, which was packaged in a "turkey" bag (an oven roasting bag) inside a shopping bag on the back seat. Officer Solomon checked defendant's cannabis card to see whether it had expired. The card had an expiration date of October 9, 2012, almost a year and a half before the traffic stop. The card contained the name of the physician who had recommended medical marijuana: Dr. Charles Trammel. It also stated: "Patient may carry 160 oz. [(10 pounds)] and grow 99 plants." Defendant said he knew his cannabis card had expired.
Officer Solomon placed defendant under arrest and put him in the back seat of the patrol car. Officer Solomon asked defendant why he had the marijuana. Initially, defendant said he got the marijuana from a friend and planned to smoke it with friends. Defendant then said he was an unemployed electrician, did not have any money, and needed to make some money. He said he was going to use the marijuana to make money to pay his bills, including his vehicle registration. He also said he did not have enough money to pay for a new cannabis card. When Officer Solomon asked defendant if he was going to sell the marijuana, he said he " 'needed to make some money.' " Defendant did not say the marijuana was for his personal consumption or that he used it medicinally for leg pain.
When arrested, defendant had $330 in cash in his wallet. The officers did not find any weapons, sales ledgers, packing materials, scales, or text messages on his cell phone that would be consistent with possession for sale.
Expert Witness Testimony of Officer Brett Moiseff
San José Police Officer Brett Moiseff testified for the prosecution as an expert on possession of marijuana for sale and recognizing usable amounts of marijuana. As a member of the Santa Clara County Specialized Enforcement Team, Officer Moiseff is involved in county-wide investigations of drug offenses. His background includes undercover investigations in major drug sales cases and work on a federal drug enforcement task force. Officer Moiseff was familiar with the CUA and acknowledged that marijuana can be used legally for medicinal purposes.
Shortly before trial, Officer Moiseff inspected and weighed the marijuana found in defendant's car. He estimated its net weight (excluding the packaging) at 427 to 429 grams, which is approximately 15 ounces. According to Officer Moiseff, a small marijuana cigarette or "joint" uses one to three grams of marijuana. The marijuana was primarily marijuana bud, in "really good" condition, especially after having been stored for over a year. A pound of marijuana in good condition sells for $2,500; it could be worth more if sold in smaller increments. Officer Moiseff could not determine the potency or THC (tetrahydrocannabinol) content of the marijuana by looking at it and said laboratory testing would be required to determine the potency of the marijuana.
In response to a hypothetical question based on facts from this case, Officer Moiseff opined that the person in the hypothetical both possessed and transported the marijuana for sale. The amount of marijuana and the person's statement about making money were consistent with transportation for sale and suggested the person was a "middleman." A "middleman" delivers marijuana for other sellers and is typically paid $100 to transport marijuana. The fact that an unemployed person has $330 in cash is also consistent with possession for sale, but Officer Moiseff could not say with any certainty whether the $330 was from drug sales.
Defense Case
Defendant's Testimony
Defendant testified that he used marijuana medicinally to treat chronic pain from a leg injury in a car accident in May 2008. At that time, defendant sustained a comminuted fracture of his right femur and underwent surgery to reduce the fracture. The surgery included placement of a titanium rod and fixation screws in his right leg. Defendant's first surgery in May 2008 resulted in shortening of his right leg and he had a second surgery in late 2008 or early 2009 to correct that problem.
Defendant started smoking marijuana in 2005 or 2006, long before his car accident. After his surgeries, defendant's doctors at Regional Medical Center prescribed pain medication; they did not recommend medical marijuana. Defendant took the pain medication and started using marijuana to treat the side effects of the pain medication, which included headaches, constipation, nausea, and dizziness.
In October 2011 (three years after his first surgery), defendant saw Dr. Trammel at the Cali420 Doctor clinic for a medical marijuana recommendation to treat his leg pain. Defendant was having leg pain every day, and it hurt more in the wintertime. Dr. Trammel gave him a recommendation for medical marijuana. After he saw Dr. Trammel, defendant stopped using the pain medication and used only medical marijuana to treat his pain. Defendant continued using marijuana for pain management after his recommendation from Dr. Trammel expired in October 2012. Defendant did not renew his medical marijuana recommendation prior to his arrest in March 2014. Defendant bought his marijuana on the street because it was cheaper than buying it at a cannabis club or dispensary. He testified that smoking requires less marijuana than edibles and that it takes more of a lower-quality marijuana to get the same effect as a higher-quality marijuana.
At the time of his arrest, defendant was having leg pain daily. He used medical marijuana every day, "all day long," "in the morning, late morning, afternoon or the evening," whenever he felt pain in his leg. He usually smoked a "joint," but also smoked it in a pipe and used edibles (brownies and marijuana butter). His marijuana use increased over time, as his tolerance to the drug increased.
Defendant bought his marijuana from a person named Santos. He usually purchased an eighth of a pound (two ounces), which lasted three to four weeks, for $300 to $350. The day of his arrest, he picked the marijuana up from Santos in the parking lot of a retail store. Santos gave him close to a pound and said he would charge $900 to $1,000 for it since it was a poorer quality marijuana. Defendant did not pay for the marijuana that day since he did not have enough money to buy it. Santos told him to take it and try it and said if he liked it, he could keep it. If smoking the marijuana did not produce the effect defendant wanted, he planned to make brownies with it.
After he picked up the marijuana, defendant planned to meet a friend at Healthy Feet for a foot massage, and then go home. They also planned to smoke marijuana together. Defendant was on his way to Healthy Feet when the officers stopped him.
After the officers pulled defendant over, they had him step out of his car and asked if he had any drugs or weapons. He said he had marijuana on his back seat. The officers asked why he had marijuana and he initially said it was for personal consumption. According to defendant, Officer Solomon raised her voice and started cussing at him. When he asked her to speak to him nicely, she got more aggressive. Officer Dote said, "This guy has a marijuana card. Just let him go." Officer Solomon then told defendant that if he said he had the marijuana for any purpose other than personal use, she would release him. Defendant therefore told the officers he was an unemployed electrician and "needed to make some money" to pay bills and pay for his registration. Defendant said this because he thought it was what Officer Solomon wanted to hear. In fact, defendant was not unemployed. He worked five days a week doing set up on a computer numeric control machine for an unnamed employer. He lied because Officer Solomon was upset and because he was hoping to be released.
Ten days after his arrest, defendant saw Dr. Mohammad Mattu at San Jose 420 Evaluations and obtained a new medical marijuana recommendation. Defendant still had leg pain from his car accident, both at the time of his arrest and when he saw Dr. Mattu. Dr. Mattu's recommendation expired on March 30, 2015. Defendant did not renew his recommendation after that date; he believes he does not need a cannabis card because he does not buy marijuana from a dispensary. Defendant has had leg pain every day since his accident and would rather use marijuana than prescription medications.
Testimony of Dr. Mohammad Mattu
Dr. Mattu is a retired cardiologist. He works two days a week at San Jose 420 Evaluations, evaluating and advising patients regarding the medical use of marijuana. He sees 70 to 100 patients each day. He spends six to seven minutes on each evaluation, reviewing the patient's intake form and doing any necessary examination. Based on his experience, he can make an accurate assessment in five to six minutes. He approves medical marijuana use for more than 90 percent of the patients he sees.
When he makes a medical marijuana recommendation, Dr. Mattu does not determine how much marijuana the patient should use or prescribe a specific dose of the drug. He authorizes patients to use the amount that is "enough for them for relief." If the patient has used marijuana previously, the patient might need more because he or she has developed a tolerance to the drug. First-time users generally use much less.
In People v. Kelly (2010) 47 Cal.4th 1008, 1018, fn. 10 (Kelly), the California Supreme Court observed: "The California Medical Association (CMA) counsels physicians that because 'the federal government has taken the position that physicians may not lawfully prescribe cannabis for medical use . . . ,' physicians should avoid offering advice concerning, among other things, "how much medicinal cannabis the patient should take to obtain therapeutic relief." [Citation.] The CMA also advises: 'A physician should be free to opine that the allowable amount of cannabis does not appear to meet a particular patient's medical needs, if the physician has a reasonable basis for such an opinion. However, CMA does not advise physicians to specify the amount of cannabis that would be consistent with the patient's needs.' [Citation.]"
Since he sees so many patients, Dr. Mattu did not recall defendant. Defense counsel asked Dr. Mattu hypothetical questions based on a patient with defendant's medical history. Dr. Mattu testified that the person in the hypothetical would be a candidate for medical marijuana. Depending on the patient's statements, he could have an on-going medical condition from 2008. Dr. Mattu also testified that if the patient obtained a recommendation for medical marijuana in 2011 and did not renew it until 2014, it is possible he did not need medical marijuana in the interim since most approvals last one year.
Testimony of Cannabis Consultant Mike Corral
Corral has been working with medical marijuana since 1975. He started growing marijuana to treat his wife's grand mal seizures, which were not responding to conventional medicine. He has cultivated marijuana since 1975 and breeds different strains to treat specific medical conditions. In 1993, Corral founded the Wo/Men's Alliance for Medical Marijuana (WAMM), the first medical marijuana collective in California. He advises law enforcement on marijuana cultivation and interacting with medical marijuana patients. He is a consultant to medical marijuana groups and dispensaries and gives presentations around the world. Corral was a member of the group that authored the CUA and participated in the Attorney General's task force that led to the passage of the Medical Marijuana Program (§ 11362.7 et seq.). The court accepted Corral as an expert in recognizing marijuana, usable amounts, recreational versus medicinal use, and possession of marijuana for sale.
Corral testified that there are 0.8 grams of marijuana in an average joint. Most medical marijuana users know how much they need. Since there is not a lot of scientific research on dosages, most people figure out what they need on their own. For cooking, people generally use one ounce of marijuana at a time, but there are broad variations among users. Corral agreed that cooking marijuana requires more marijuana by weight than smoking it.
Corral examined the marijuana seized in this case through the sealed evidence bag. It looked like stavia, the most common strain, which can be used medicinally. It looked less potent, which means a person has to dose more often or use it in higher amounts. Corral stated potency applies only to THC, "the only psychoactive cannabinoid in marijuana." Other cannabinoids have medicinal effects. Some medical marijuana users do not want to get high so they look for strains with lower levels of THC. Corral opined that the street value of the marijuana in this case was $1,000 to $1,500.
The average medical marijuana patient uses 12 ounces per year. But usage varies, and Corral has known people who use five to six pounds per year. Corral stated that possession of one pound of marijuana is consistent with both personal use and possession for sale. Corral described how marijuana is packaged and sold; 15 ounces is not an amount one typically sees for recreational or medical use. In his view, the only evidence indicative of possession for sale were defendant's statements to the officer.
Prosecution's Rebuttal Evidence
On rebuttal, Officer Solomon testified that defendant never said he suffered from chronic leg pain or used marijuana for pain. She did not recall Officer Dote saying they should let defendant go because he had a medical marijuana card. She denied raising her voice or swearing at defendant.
PROCEDURAL HISTORY
After a preliminary hearing, defendant was charged by information with one felony count of transportation of marijuana (§ 11360, subd. (a)) and one felony count of possession of marijuana for sale (§ 11359).
At trial, the prosecution made motions in limine (1) to preclude defendant from presenting a defense based on the CUA on the ground that defendant had not offered any admissible evidence to support such a defense; (2) to exclude defendant's medical marijuana card as hearsay; and (3) to exclude the testimony of defendant's expert witnesses. After conducting a hearing under Evidence Code section 402, the trial court ruled that defendant would be allowed to present evidence of an affirmative defense based on the CUA.
The jury found defendant: (1) guilty of felony transportation (§ 11360, subd. (a); count 1); (2) not guilty of felony possession of marijuana for sale (§ 11359; count 2); but (3) guilty of misdemeanor possession of more than 28.5 grams of marijuana (§ 11357, subd. (c)), the lesser-included offense to count 2. The jury necessarily rejected defendant's CUA defense on the transportation and simple possession counts.
In his sentencing brief filed in October 2015, defendant argued the court should dismiss his felony conviction for transporting marijuana because of statutory changes to section 11360, which were to take effect the following January. The amendment added an additional element to the offense: that unlawful transportation of marijuana means transportation for sale. Defendant argued (1) the amendment applied retroactively to his case since his case it was not yet final, and (2) the prosecution had not proven transportation for sale since the jury acquitted him of possessing the same marijuana. Alternatively, defendant asked the court to delay sentencing on the transportation count until after the new law took effect.
The court denied defendant's request to delay sentencing, suspended imposition of sentence, and granted three years formal probation. The court imposed various conditions of probation, including 120 days in jail. The court ruled, however, that defendant could serve the 120 days in a public service program. Other conditions of probation included abstaining from using drugs and completing a substance abuse program. The court imposed fines and fees and ordered defendant to register as a narcotics offender.
DISCUSSION
I. The Amendment of Section 11360 Requires Reversal of Defendant's Conviction for Transportation of Marijuana
Defendant contends his conviction for transportation of marijuana (§ 11360) must be reversed because the subsequent amendment of section 11360 changed the elements of the offense. Defendant notes that at the time of his conviction, transportation of marijuana did not require proof of the intent to sell and a person could violate the statute by transporting marijuana for personal use. He notes also that section 11360 was amended effective January 1, 2016, and that as amended, the statute criminalizes only transportation for sale. Defendant asserts his conviction on the transportation count should be reversed because the amendment applies to him. He also argues that he may not be retried for the offense because the jury concluded on the possession count that he did not intend to sell the marijuana.
The Attorney General concedes the amendment applies retroactively to defendant and requires reversal of his conviction on the transportation count. The Attorney General also concedes that defendant may not be retried on the transportation count because he was acquitted on the possession for sale count and the same marijuana was at issue on both counts.
Whether a statute operates prospectively or retroactively is a question of statutory construction that we review de novo. (People v. Brown (2012) 54 Cal.4th 314, 319-320 (Brown) [retroactivity is a question of statutory construction]; People v. Riley (2015) 240 Cal.App.4th 1152, 1162 [meaning of a statute is a question of law that we decide de novo].)
When defendant committed his offenses in March 2014 and when he was convicted in July 2015, former section 11360 punished any transportation of marijuana. The statute provided, in relevant part: "(a) . . . , every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, . . . , or attempts to import into this state or transport any marijuana shall be punished by imprisonment . . . for a period of two, three or four years. [¶] (b) Except as authorized by law, every person who . . . , transports, offers to transport, or attempts to transport not more than 28.5 grams of marijuana, other than concentrated cannabis, is guilty of a misdemeanor . . . ." (Former § 11360.) At the time of defendant's conviction, former section 11360 did not require proof of an intent to sell and a person could violate the statute by transporting marijuana for personal use. (Former § 11360; People v. Rogers (1971) 5 Cal.3d 129, 134-136 [construing former section 11531, the predecessor to section 11360].)
During defendant's trial, section 11360 was amended by adding subdivision (c), which provides, "For purposes of this section, 'transport' means to transport for sale." (Stats. 2015, ch. 77, § 1, eff. Jan. 1, 2016.) Accordingly, transportation of marijuana for personal use no longer constitutes a violation of section 11360. The practical effect of this amendment is that transportation of marijuana for sale is now an element of the offense, which must be proven beyond a reasonable doubt. (See People v. Ramos (2016) 244 Cal.App.4th 99, 102-103 [construing section 11352, which prohibits transportation of various controlled substances, including heroin, and which was amended in the same way as former section 11360]; see also Stats. 2013, ch. 504 [amending section 11352].)
The amendment was filed with the Secretary of State on July 13, 2015, the day before the jury rendered its verdicts in this case. (West's Cal. Session Laws, 1st Regular Session, Ch. 1-249 (2015) ch. 77, p. 1536.)
Defendant contends and the Attorney General concedes the amendment is retroactive and applies to defendant. We agree and accept the Attorney General's concession. (See Ramos, supra, 244 Cal.App.4th at p. 103 [construing the same amendment to section 11352], citing In re Estrada (1965) 63 Cal.2d 740, 744-748; Brown, supra, 54 Cal.4th at pp. 319-320; People v. Wright (2006) 40 Cal.4th 81, 90; People v. Rossi (1976) 18 Cal.3d 295, 301; and other cases.)
We also agree that double jeopardy principles bar retrial of the transportation count. The acquittal on the possession for sale charge suggests the jury did not believe defendant possessed and, by implication, transported the marijuana for sale. At a minimum, it demonstrates that the prosecution did not meet its burden of proving defendant possessed the marijuana for sale beyond a reasonable doubt. Moreover, the same bag of marijuana was at issue on both counts. We will therefore accept the Attorney General's concessions that the amendment of section 11360 applies retroactively to defendant and that defendant may not be retried on the transportation count (§ 11360, count 1) and reverse the judgment of conviction on that count.
II. Failure to Instruct with Defendant's Proposed Jury Instruction No. 2 Regarding the CUA Defense
Defendant contends the court committed reversible error when it refused to instruct the jury with his Proposed Jury Instruction No. 2 (hereafter sometimes "Proposed Instruction"). Defendant argues Proposed Instruction would have clarified aspects of his CUA defense that were not included in the standard jury instruction (CALCRIM No. 3412). He asserts the court's refusal to instruct with Proposed Instruction was a failure to instruct on a defense theory of the case, namely that possession of a large amount of marijuana and an expired recommendation did not invalidate his CUA defense.
A. Procedural History Related to Instructional Error Claim
The trial court instructed the jury twice with language of CALCRIM No. 3412, the standard instruction on the CUA defense. The trial court instructed on the CUA defense as part of its instructions on count 1, the transportation charge, and its instruction on simple possession of marijuana (§ 11357, subd. (c)), the lesser crime to possession for sale. Both times, the court used language based on CALCRIM No. 3412.
Although the CUA defense instructions in this case use language from CALCRIM No. 3412, they are not identified by that number in the record. Instead they were part of the instructions on transportation and simple possession, which were based on former CALCRIM Nos. 2361 and 2375 respectively. Prior to February 2015, the instruction on the CUA defense was included in former CALCRIM Nos. 2361 and 2375. The CALCRIM was revised in February 2015, five months before the trial in this case, and the CUA defense was deleted from the instructions on the substantive offenses (CALCRIM Nos. 2361 and 2375) and set forth in a separate instruction (CALCRIM No. 3412). The court and the parties apparently relied on the old form instructions. We shall refer to the instruction as CALCRIM No. 3412.
As to simple possession, the trial court instructed the jury that: "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 . . . when a physician has 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."
We shall not set forth the language used to instruct on the CUA defense for the transportation charge, since we are reversing the conviction on that count.
In addition to instructing with CALCRIM No. 3412, defendant asked the court to give Proposed Instruction regarding the CUA defense, which he argued was based on Windus, supra, 165 Cal.App.4th 634. Proposed Instruction stated: "The defendant must have obtained a recommendation or oral approval to use medical marijuana prior to his or her arrest. However, that recommendation need not specify an approved dosage or amount of marijuana that may be possessed. The defendant is not required to periodically renew his doctor's recommendation or approval regarding medical marijuana use. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant did not have a valid recommendation for the medical use of marijuana." Defendant argued even though Dr. Trammel's recommendation included limits on the amount of marijuana defendant could possess, it was important for the jury to know that the law does not require the doctor to specify a dosage amount. He also argued that even though doctors may require it, the CUA does not require periodic renewal of the medical marijuana recommendation.
The prosecutor objected to Proposed Instruction. He argued there was a factual dispute whether defendant had a valid medical marijuana recommendation when arrested and asserted that Proposed Instruction took that issue away from the jurors and told the jurors they needed to find "the facts as [the] defense sees them." The prosecutor argued the reference in Proposed Instruction to an oral approval and the sentence regarding amounts and dosages would cause confusion, since there was no evidence of an oral approval and defendant's 2011 medical marijuana card contained limits on the amount he could possess. The prosecutor argued this case is distinguishable from Windus, that it would be a "misinstruction" to tell the jury to disregard the expiration dates, and that CALCRIM No. 3412 adequately described the defense.
Stating it was a "close call," the court declined to give Proposed Instruction. The court explained that it viewed instructions that are not part of CALCRIM with suspicion; it also found this case factually distinguishable from Windus.
During deliberations, the jury asked three questions related to the CUA defense. First, the jury asked: "Does the Compassionate Use Act say something about the expiration of a doctor's recommendation?" The court responded, "No." Second, the jury asked: "Can we have a copy of the Act?" The court responded, "You have all the law necessary in the given instructions." Third, the jury asked: "If marijuana is purchased from an illicit source/outside of a dispensary is it still medical marijuana?" The court responded, "If marijuana is legally possessed, the source of the marijuana does not matter."
B. Legal Principles Governing Jury Instructions
"A trial court must instruct the jury, even without a request, on all general principles of law that are ' "closely and openly connected to the facts and that are necessary for the jury's understanding of the case." [Citation.] In addition, "a defendant has a right to an instruction that pinpoints the theory of the defense . . . ." ' [Citation.] The court may, however, 'properly refuse an instruction offered by the defendant if it incorrectly states the law, is argumentative, duplicative, or potentially confusing [citation], or if it is not supported by substantial evidence [citation].' [Citation.]" (People v. Burney (2009) 47 Cal.4th 203, 246; see also People v. Wright (1988) 45 Cal.3d 1126, 1134 [pinpoint instruction properly rejected when it is repetitious of other instructions given].) Specifically, a criminal defendant "is entitled to an instruction that focuses the jury's attention on facts relevant to its determination of the existence of reasonable doubt . . . ." (People v. Johnson (1992) 3 Cal.4th 1183, 1230.)
On appeal, we independently review the trial court's refusal to instruct on a defense. (People v. Manriquez (2005) 37 Cal.4th 547, 581.) " 'In conducting this review, we first ascertain the relevant law and then "determine the meaning of the instructions in this regard." [Citation.] [¶] The proper test for judging the adequacy of instructions is to decide whether the trial court "fully and fairly instructed on the applicable law . . . ." [Citation.] " 'In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. [Citation.]' " [Citation.]' " (People v. Johnson (2009) 180 Cal.App.4th 702, 707.)
C. General Principles Regarding Medical Marijuana and the CUA Defense
"In 1996, the California electorate approved Proposition 215 and adopted the CUA, which provides [in part]: 'Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient's primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.' (§ 11362.5, subd. (d).)" (Kelly, supra, 47 Cal.4th at p. 1012, fn. omitted.) The CUA also provides that "no physician in this state shall be punished, or denied any right or privilege, for having recommended" medical marijuana. (§ 11362.5, subd. (c).) In Kelly, the California Supreme Court explained: "the CUA provides an affirmative defense to prosecution for the crimes of possession and cultivation. [Citations.] The CUA does not grant immunity from arrest for those crimes, however." (Id. at p. 1013.) Under the CUA, if law enforcement has probable cause to believe possession or cultivation has occurred, officers may arrest a person for either crime even if that person has a physician's recommendation or approval to use medical marijuana. (Ibid.)
The CUA does not specify the amount of marijuana that a medical marijuana patient may possess or cultivate, but simply imposes the requirement that the marijuana must be for the patient's "personal medical purposes." (§ 11362.5, subd. (d); Kelly, supra, 47 Cal.4th at p. 1013.) The personal medical purposes requirement has been judicially construed to mean " 'the quantity possessed by the patient or the primary caregiver, and the form and manner in which it is possessed, should be reasonably related to the patient's current medical needs.' " (Kelly, at p. 1013, quoting People v. Trippet (1997) 56 Cal.App.4th 1532, 1549 (Trippet), italics added in Kelly.)
"Despite—or, perhaps, because of—this judicial construction of the CUA, questions persisted for both qualified medical marijuana patients and for law enforcement officers relating to enforcement of and arrest for possession, cultivation, and other related marijuana offenses. In 2003, the Legislature found that 'reports from across the state have revealed problems and uncertainties in the [CUA] that have impeded the ability of law enforcement officers to enforce its provisions as the voters intended and, therefore, have prevented qualified patients and designated primary caregivers from obtaining the protections afforded by the act.' (Stats. 2003, ch. 875, § 1, subd. (a)(2).)" (Kelly, supra, 47 Cal.4th at pp. 1013-1014.) In response, the Legislature enacted the Medical Marijuana Program (§ 11362.7 et seq.) to "[c]larify the scope of the application of the [CUA] and facilitate the prompt identification of qualified patients . . . to avoid unnecessary arrest and prosecution of these individuals and provide needed guidance to law enforcement officers," "[p]romote uniform and consistent application of the [CUA]," "[e]nhance the access of patients and caregivers to medical marijuana," and "address additional issues that were not included within the [CUA]." (Stats. 2003, ch. 875, § 1, subds. (b), (c); see also Kelly, at p. 1014; People v. Mentch (2008) 45 Cal.4th 274, 290 [the Medical Marijuana Program "immunizes from prosecution a range of conduct ancillary to the provision of medical marijuana to qualified patients"].)
Although the Medical Marijuana Program did not expressly amend the CUA (§ 11362.5), it added 18 new sections to the Health and Safety Code that address the general subject matter covered by the CUA: medical marijuana. (Kelly, supra, 47 Cal.4th at p. 1014.) At the heart of the Medical Marijuana Program is a voluntary identification card system, which, unlike the CUA, provides protection against arrest for possession, transportation, delivery, or cultivation of medical marijuana. Under the Medical Marijuana Program, a person who suffers from a "serious medical condition" and the designated "primary caregiver" of that person, may register and receive an annually renewable identification card that can be shown to a law enforcement officer who otherwise might arrest the person or the primary caregiver. (Ibid.)
Section 11362.71, subdivision (e), which is part of the Medical Marijuana Program, provides: "No person or designated primary caregiver in possession of a valid identification card shall be subject to arrest for possession, transportation, delivery, or cultivation of medical marijuana in an amount established pursuant to this article [(the Medical Marijuana Program)], unless there is reasonable cause to believe that the information contained in the card is false or falsified, the card has been obtained by means of fraud, or the person is otherwise in violation of the provisions of this article."
As we have stated, the CUA does not specify an amount of marijuana one may possess. Instead, it requires a determination by the trier of fact that the quantity possessed is reasonably related to the patient's current medical needs. (Kelly, supra, 47 Cal.4th at p. 1013; Windus, supra, 165 Cal.App.4th at p. 640) Unlike the CUA, the Medical Marijuana Program sets specific quantity limits on the amount of marijuana a qualified patient or primary caregiver may possess, which are set forth in section 11362.77. That section "provides that a qualified patient or primary caregiver may not possess more than eight ounces of dried marijuana or more than six mature or 12 immature marijuana plants unless he or she has a doctor's recommendation that this quantity does not meet the patient's medical needs. (§ 11362.77, subds. (a), (b).)" (Windus, at p. 640.)
The Medical Marijuana Program defines a "qualified patient" as "a person who is entitled to the protections of [the CUA], but who does not have an identification card issued pursuant to [the Medical Marijuana Program]." (§ 11362.7, subd. (f).)
Construing section 11362.77, subdivision (a), the Supreme Court stated in Kelly that the Medical Marijuana Program "by its terms, does not confine its specific quantity limitations to those persons who voluntarily register with the program and obtain identification cards that protect them against arrest. It also restricts individuals who are entitled, under the CUA, to possess or cultivate any quantity of marijuana reasonably necessary for their current medical needs, thereby burdening a defense that might otherwise be advanced by persons protected by the CUA. Moreover, although subdivision (b) of section 11362.77 allows possession of a quantity 'consistent with the patient's needs' that is greater than the amount set out in subdivision (a), it affords this protection only if a physician so recommends—a qualification not found in the CUA." (Kelly, supra, 47 Cal.4th at p. 1017, original italics.) The court concluded that the quantity limitations in the Medical Marijuana Program (§ 11362.77) "conflict with—and thereby substantially restrict—the CUA's guarantee that a qualified patient may possess and cultivate any amount of marijuana reasonably necessary for his or her current medical condition." (Kelly, at p. 1043, original italics.) The court held that insofar as section 11362.77 (with its quantitative limitations) "burdens a defense under the CUA to a criminal charge of possessing or cultivating marijuana, it impermissibly amends the CUA . . . ." (Kelly, at pp. 1012, 1043, 1049.) The court held that in that respect, section 11362.77 was invalid under California Constitution, article II, section 10, subdivision (c) because it amended the CUA, an initiative measure adopted by the voters, without the approval of the electorate. (Kelly, at pp. 1012, 1043, 1049.)
Although the Kelly court disallowed "the invalid application of section 11362.77" to the extent that it purported "to burden a defense otherwise available to qualified patients . . . under the CUA," it held that section 11362.77 need not be severed from the Medical Marijuana Program and hence voided in its entirety. (Kelly, supra, 47 Cal.4th at pp. 1048-1049.) The court concluded that "[w]hether or not a person entitled to register under the [Medical Marijuana Program] elects to do so, that individual, so long as he or she meets the definition of a patient . . . under the CUA, retains all the rights afforded by the CUA. Thus, such a person may assert, as a defense in court, that he or she possessed or cultivated an amount of marijuana reasonably related to meet his or her current medical needs [citation] without reference to the specific quantitative limitations specified by the [Medical Marijuana Program]." (Id. at p. 1049.)
D. Defendant's Contentions
Defendant contends that Proposed Instruction was supported by legal authority, accurately reflected the law, was not argumentative, was needed to clarify his CUA defense, and that substantial evidence supports giving Proposed Instruction. He contends that by refusing the instruction, the court failed to instruct on a defense theory of the case in violation of his right to due process.
Defendant argues the "two central and disputed issues concerning [his] CUA defense [were] the quantity of marijuana possessed and [his] possession of an expired [medical marijuana] recommendation." He asserts the CUA instruction the court gave "did not explain that possession of an expired recommendation and a large quantity of marijuana does not legally invalidate a CUA defense." Defendant asserts Proposed Instruction would have instructed the jury on three points of law that were not covered by the CALCRIM instruction: (1) a doctor's approval of medical marijuana could be oral; (2) a valid recommendation need not specify an approved dosage amount; and (3) the CUA does not require periodic renewal of the doctor's recommendation or approval.
E. The Windus case
Proposed Instruction was based on Windus, supra, 165 Cal.App.4th 634, and defendant relies on Windus on appeal. In Windus, police officers searched the defendant's room pursuant to a warrant and found 735.2 grams (approximately 1.6 pounds or 25.6 ounces) of marijuana. (Id. at p. 637.) The defendant said he used one ounce of marijuana per week for medical reasons and showed the investigating officer an expired medical marijuana card. (Ibid.) The prosecution charged the defendant with possession of marijuana for sale. (Id. at pp. 637-638.) Before trial, the defendant moved to present a defense under the CUA and the prosecution moved to exclude evidence of that defense. (Id. at pp. 638-639.)
At a hearing pursuant to Evidence Code section 402, Dr. William Eidleman testified in Windus that he saw the defendant in 1999 and 2001, years before his arrest. Both times, the defendant complained of chronic back pain. Both times, Dr. Eidleman gave the defendant "a written recommendation for the medical use of marijuana, but did not specify an amount or dosage. Dr. Eidleman also recommended that [the defendant] be reevaluated annually." (Windus, supra, 165 Cal.App.4th at p. 638.) When the police arrested the defendant in December 2004, he had not seen Dr. Eidleman in over three years. The defendant saw Dr. Eidleman again in November 2005, eleven months after his arrest. (Id. at p. 638.) Having seen the defendant in 1999, 2001, and 2005, Dr. Eidleman opined at the 402 hearing that the defendant's condition when he was arrested in 2004 " 'was the same, which was he had severe chronic pain.' " (Id. at p. 641.) The defendant told Dr. Eidleman he ingested marijuana by eating it. Dr. Eidleman testified that a person who eats marijuana needs four to eight times as much as a person who smokes it to get the same effect and opined that the defendant needed three to six pounds of marijuana to meet his medical needs. (Id. at pp. 638, 641.)
The trial court in Windus denied the defendant's request to present a CUA defense. The trial court found that while the defendant was a qualified patient who suffered from a severe medical condition and a licensed physician had recommended medical marijuana, neither Dr. Eidleman nor any other physician had recommended the defendant possess more than eight ounces of marijuana at any one time. The court thus applied the quantity limitations from the Medical Marijuana Program (§ 11362.77) to the defendant's CUA defense. (Windus, supra, 165 Cal.App.4th at p. 639.)
Although the defendant in Windus, like the defendant in Kelly, challenged the constitutionality of the quantity limitations in the Medical Marijuana Program, the Windus court concluded it could resolve the appeal without addressing the constitutional question. It noted, however, that the issue was then pending before the California Supreme Court in Kelly. (Windus, supra, 165 Cal.App.4th at p. 640 and fn. 2.)
On appeal, the Attorney General argued in Windus that the defendant's medical marijuana recommendation "had clearly expired" by the time of his arrest, and that the defendant had not presented any evidence regarding the amount of marijuana needed to satisfy his medical need at the time of his arrest. (Windus, supra, 165 Cal.App.4th at pp. 640-641.) The appellate court disagreed, stating that nothing in the CUA "requires a patient to periodically renew a doctor's recommendation regarding medical marijuana use. The statute does not provide, . . . , that a recommendation 'expires' after a certain period of time. As for Dr. Eidleman's suggestion that appellant see him annually, there was no evidence appellant's failure to do so invalidated the doctor's medical marijuana recommendation." (Id. at p. 641.) The court held the evidence the defendant "presented was sufficient to present to the jury the question whether the marijuana he possessed was for his personal medical needs." (Ibid.) The court also gleaned the following rules from the case law: "to present a CUA defense to the jury, a defendant must have obtained a recommendation to use medical marijuana prior to his or her arrest. However, that recommendation need not specify an approved dosage or amount of marijuana that may be possessed. A doctor's opinion that the amount in the defendant's possession meets his or her personal medical needs may be proffered at trial." (Id. at p. 643.) The court held that since the defendant had established he had a medical marijuana recommendation prior to his arrest, and Dr. Eidleman testified that the amount of marijuana in the defendant's possession was commensurate with his medical needs at the time of his arrest, the trial court should have allowed him to present a CUA defense. (Ibid.)
F. Analysis
In evaluating defendant's instructional error claim, we review Proposed Instruction line by line.
1. The Court Erred When it Failed to Instruct that the CUA Does Not Address the Expiration of a Medical Marijuana Recommendation
We begin with the third sentence in Proposed Instruction, which states: "[t]he defendant is not required to periodically renew his doctor's recommendation or approval regarding medical marijuana use." This appears to be based on the following language from Windus: "we see nothing in the [CUA] that requires a patient to periodically renew a doctor's recommendation regarding medical marijuana use. The statute does not provide, . . . , that a recommendation 'expires' after a certain period of time." (Windus, supra, 165 Cal.App.4th at p. 641.)
Defendant argues that the CUA defense is available to qualified patients, regardless of whether their recommendation or approval for medical marijuana has expired, citing Windus and other legal authority. Defendant argues that, as in Windus, his possession of a large quantity of marijuana and an expired recommendation does not, as a matter of law, invalidate his CUA defense and that the jury should have been instructed that he was not required to periodically renew his doctor's recommendation regarding medical marijuana.
In addition to Windus, defendant cites People v. Wright, supra, 40 Cal.4th at pages 93-94 and sections 11362.765, subdivision (b); 11362.7, subdivision (f); and 11362.71, subdivision (f), which are part of the Medical Marijuana Program. Other than Windus, none of this authority says anything about the expiration of a medical marijuana recommendation. Section 11362.71, subdivision (f) does say that a person need not obtain a medical marijuana card to claim the protections of the CUA. --------
The Attorney General responds that Windus does not support the notion that a qualified patient may continue to use medical marijuana after a recommendation has expired by its own terms. He contends Proposed Instruction suggests that "once a defendant has obtained a physician's recommendation or approval for the medicinal use of marijuana," he or she need never obtain another recommendation or approval to continue using medical marijuana.
"Pinpoint instructions 'relate particular facts to a legal issue in the case or "pinpoint" the crux of a defendant's case, such as mistaken identification or alibi. [Citation.] They are required to be given upon request when there is evidence supportive of the theory . . . .' [Citation.]" (People v. Wilkins (2013) 56 Cal.4th 333, 348-349 (Wilkins).) A criminal defendant "is entitled, upon request, to a nonargumentative instruction that pinpoints his or her theory of the case. [Citation.] An instruction that directs the jury to ' "consider" ' certain evidence is properly refused as argumentative. [Citation.] 'In a proper instruction, "[w]hat is pinpointed is not specific evidence as such, but the theory of the defendant's case." ' [Citation.]" (People v. Ledesma (2006) 39 Cal.4th 641, 720 (Ledesma), original italics.)
"As a general rule, in the absence of a request for amplification, the language of a statute defining a crime or defense usually is an appropriate [and desirable] basis for an instruction." (People v. Rodriguez (2002) 28 Cal.4th 543, 546; People v. Poggi (1988) 45 Cal.3d 306, 327.) As pertinent here, the CUA (§ 11362.5) protects patients who have a physician's "written or oral recommendation or approval" to use medical marijuana from prosecution for possession of marijuana (§ 11357) and cultivation of marijuana (§ 11358) by providing a defense to those crimes. (§ 11362.5, subd. (d).) The statute is, however, silent on the effect of an expired medical marijuana recommendation.
Although the CUA itself is silent on the effect of an expired medical marijuana recommendation, case law interpreting the statute has addressed this point. Published appellate decisions are a good source for special jury instructions and a number of standard instructions in criminal cases started as pinpoint instructions requested by defendants. (See e.g., People v. Wright, supra, 45 Cal.3d at p. 1137.)
As we have noted, Windus discussed the expiration of defendant's medical marijuana recommendation and held that nothing in the CUA "requires a patient to periodically renew a doctor's recommendation regarding medical marijuana use. The statute does not provide, . . . , that a recommendation 'expires' after a certain period of time." (Windus, supra, 165 Cal.App.4th at p. 641.) The CALCRIM instruction given did not address the expiration of defendant's medical marijuana recommendation. The court, however, did address this point in response to a jury question. During deliberations, the jury asked whether the CUA says "something about the expiration of a doctor's recommendation." The court correctly responded, "No" and referred the jury to the CALCRIM instruction, which instructed that "the amount of marijuana possessed . . . must be reasonably related to the patient's current medical needs."
The court's answer and the instruction did not provide the jury with any guidance regarding the legal effect of an expired medical marijuana recommendation. The jury's question was surely a request for an answer to a legal question. The district attorney had argued that because the card was expired defendant was guilty of the charge. Furthermore, the jury's question had been answered in Windus and instructing with the third sentence of Proposed Instruction would have illuminated a legal principle that applied to the case. The court was aware of the Windus case, having discussed it with counsel during motions in limine and their conference on jury instructions. In addition, it would have been possible to craft a non-argumentative instruction that expressed no opinion of the court as to any fact in issue. For these reasons, we conclude the court erred when it failed to instruct that nothing in the CUA requires a medical marijuana patient to periodically renew a doctor's recommendation or approval to use medical marijuana and that the CUA does not provide that a recommendation expires after a certain period of time. (Windus, supra, 165 Cal.App.4th at p. 641.)
1. The Court Did not Err in Failing to Instruct with the Other Components of Proposed Instruction No. 2
In the first sentence of Proposed Instruction, defendant asked the court to instruct that "[t]he defendant must have obtained a recommendation or oral approval to use medical marijuana prior to his or her arrest." As we have noted, Windus held that "to present a CUA defense to the jury, a defendant must have obtained a recommendation to use medical marijuana prior to his or her arrest." (Windus, supra, 165 Cal.App.4th at p. 643.) The only difference between that language from Windus and Proposed Instruction is the addition of the phrase "or oral approval" after the word "recommendation."
Defendant argues the first sentence was important to show that "the doctor's approval of medical marijuana could be oral," as when a physician "orally expresses a favorable opinion of medical marijuana use for the patient's particular ailment." Windus did not address this point. (Windus, supra, 165 Cal.App.4th at pp. 640-643.) But the express language of the CUA provides that the defense applies to "a patient . . . who possesses . . . marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician." (§ 11362.5, subd. (d), italics added; see also People v. Jones (2003) 112 Cal.App.4th 341, 347 (Jones); Trippet, supra, 56 Cal.App.4th at p. 1548.) The CUA defense instruction the court gave (CALCRIM No. 3412) used the phrase "when a physician has recommended or approved such use," but did not advise the jury that the approval or recommendation could be oral or written. However, there was no question that defendant obtained written recommendations to use medical marijuana and medical marijuana cards both before and after his arrest. Presumably, in the process of obtaining his medical marijuana cards, Dr. Trammel and Dr. Mattu also orally advised defendant that they were recommending the medical use of marijuana. But there was no evidence regarding what either Dr. Trammel or Dr. Mattu told defendant about the use of medical marijuana. There was no evidence defendant received an oral recommendation or approval, separate or apart from his written recommendations, at any other time and no issue in the case whether the doctors had orally approved medical marijuana. (See e.g., Jones, supra, 112 Cal.App.4th at pp. 346-348 [disputed factual issue whether the defendant's physician had orally approved medical marijuana].) Consequently, there was no need to instruct the jury that the physician's recommendation or approval could be oral. To the extent that Proposed Instruction sought to instruct that a doctor's oral recommendation suffices, the instruction was properly refused as it reflected neither the defense theory nor the evidence. (Cf. People v. Hartsch (2010) 49 Cal.4th 472, 501-502.)
Windus held that to present a CUA defense to the jury, the defendant must have a medical marijuana recommendation or approval before he or she is arrested and that a recommendation obtained for the first time after arrest does not suffice. (Windus, supra, 165 Cal.App.4th at p. 643.) Arguably, this is the reason defendant included the first sentence in his Proposed Instruction, since he obtained his first medical marijuana recommendation and card before he was arrested. On appeal, defendant does not advance any argument that failure to so instruct was error.
The second sentence in Proposed Instruction states: "However, that recommendation need not specify an approved dosage or amount of marijuana that may be possessed." This is a direct quote from Windus about the rules the court gleaned from case law. (Windus, supra, 165 Cal.App.4th at p. 643; see also Kelly, supra, 47 Cal.4th at p. 1016, fn. 8 [quoting Windus on this point].) Regarding this sentence, defendant argues that the CUA does not require a medical marijuana recommendation to specify an approved dosage and requires only that the quantity possessed be reasonably related to the patient's current medical needs. The CALCRIM instruction the court gave advised the jury: "[t]he amount of marijuana possessed must be reasonably related to the patient's current medical needs," but did not instruct that the recommendation need not specify an amount.
Defendant's 2011 medical marijuana recommendation and card had a "Limits Exemption" amount, which authorized defendant to carry 10 pounds of marijuana. Since the court properly instructed that the amount of marijuana possessed must be reasonably related to the patient's current medical needs and defendant's 2011 recommendation specified an amount, there was no evidentiary support for or need to instruct that the doctor's recommendation need not specify an approved dosage or amount of marijuana the patient may possess. Thus, the trial court did not err by failing to instruct with the second sentence in Proposed Instruction.
The fourth sentence in Proposed Instruction instructed on the burden of proof regarding the CUA defense as follows: "The People have the burden of proving beyond a reasonable doubt that the defendant did not have a valid recommendation for the medical use of marijuana." The CALCRIM instruction addressed the burden of proof. It stated: "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." Since the fourth sentence of Proposed Instruction was duplicative of the CALCRIM instruction given, the court did not err in refusing to instruct with the fourth sentence. (People v. Hovarter (2008) 44 Cal.4th 983, 1021-1022 [trial court may properly refuse and instruction that is duplicative].)
1. The Error Was Prejudicial
Defendant urges us to review the instructional error here under the federal harmless error standard from Chapman v. California (1967) 386 U.S. 18, 24 (Chapman). Alternatively, he argues that even if the more lenient standard from People v. Watson (1956) 46 Cal.2d 818, 836 applies, the error here "still requires reversal because it was not harmless." The Attorney General argues the "more forgiving" Watson standard applies and that under that standard, the trial court's failure to give Proposed Instruction was harmless.
The harmless error standard from Chapman applies when the trial court misinstructs the jury on an element of the offense. Under that standard, the conviction must be reversed unless the appellate court concludes the instructional error was harmless beyond a reasonable doubt. (Wilkins, supra, 56 Cal.4th at p. 348, citing People v. Hayes (1990) 52 Cal.3d 577, 628 [misinstruction on "immediate presence" element of robbery required reversal under Chapman] and People v. Harris (1994) 9 Cal.4th 407.)
The failure to give a legally correct pinpoint instruction is, however, a state law error subject to review under the Watson standard. (Wilkins, supra, 56 Cal.4th at pp. 348-349; People v. Pearson (2012) 53 Cal.4th 306, 325 & fn. 9.) For such error, "reversal is required only if 'it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' " (Wilkins, at pp. 348-349, quoting Watson, supra, at p. 836.) The instructional error here was the failure to give a pinpoint instruction regarding defendant's CUA defense; it did not involve an element of the charge. We therefore conclude the prejudice standard from Watson applies.
"Under the Watson standard, prejudicial error is shown where ' " 'after an examination of the entire cause, including the evidence,' [the reviewing court] is of the 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." [Citation.] "[The California Supreme Court has] made clear that a 'probability' in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility." [Citation.]' " (Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1050, original italics.)
By acquitting defendant of transporting marijuana for sale, the jury necessarily found that he possessed the marijuana for personal use. And by convicting him of simple possession, the jury necessarily rejected his CUA defense.
Defendant presented evidence that he had a valid medical marijuana recommendation in 2011. Defendant testified that he has had leg pain every day since his car accident; that he had leg pain on the day of his arrest and when he saw Dr. Mattu. Dr. Mattu testified that a patient with defendant's injuries and pain would be a candidate for medical marijuana and that if that patient continued to use marijuana between 2011 and 2014, he most likely needed it. Dr. Mattu also gave defendant a new medical marijuana recommendation ten days after his arrest. The short time frame between arrest and the new recommendation supports the inference that defendant needed medical marijuana at the time of his arrest. Regarding the expired recommendation, defense counsel told the jury nothing in the CUA required defendant to have a medical marijuana card or to return to his doctor and update his card. Defense counsel argued: "Nowhere in the law does it say once your card expires, then your illness is over and you don't get to use medicinal marijuana anymore." Since the jury rejected the CUA defense, this argument appears to have been unpersuasive. The court should have instructed the jury that the expiration date on the recommendation was not dispositive. In our view, if the jury had been instructed that the CUA does not address the expiration of the recommendation and that the CUA does not require the patient to periodically renew the recommendation, it is reasonably probable the jury would have found the CUA defense applied and acquitted defendant on the possession count. (Watson, supra, 46 Cal.2d at p. 837.) Indeed, the jury's question demonstrates it was concerned about the legal effect of the expired recommendation. We therefore conclude the failure to instruct regarding the expiration of the medical marijuana recommendation was prejudicial.
DISPOSITION
The judgment is reversed. Defendant may not be retried on count 1, the transportation count (§ 11360, subd. (a)).
/s/_________
RUSHING, P.J. WE CONCUR: /s/_________
PREMO, J. /s/_________
ELIA, J.