Opinion
B229208
01-25-2012
THE PEOPLE, Plaintiff and Respondent, v. MATTHEW FARRELL, Defendant and Appellant.
Margolin Law Office, Allison B. Margolin, J. Raza Lawrence and Marina Turovsky for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Eric E. Reynolds and Michael R. Johnsen, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA326377)
APPEAL from a judgment of the Superior Court of Los Angeles County. Robert J. Perry, Judge. Affirmed.
Margolin Law Office, Allison B. Margolin, J. Raza Lawrence and Marina Turovsky for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Eric E. Reynolds and Michael R. Johnsen, Deputy Attorneys General, for Plaintiff and Respondent.
Matthew Farrell appeals from his conviction of two counts of cultivating marijuana and one count of possessing marijuana for sale. Thomas argues the trial court committed an instructional error, the evidence was insufficient to convict, and the prosecution was vindictive. We affirm.
BACKGROUND
In 2005, Los Angeles Police officers discovered a large marijuana growing and processing operation at defendant's residence. The operation employed hydroponics and artificial lighting and ventilation systems, and several pounds of processed and packaged marijuana were found in the kitchen. Taped to the door of the garage was an expired physician's recommendation for defendant to use medical marijuana. Defendant was charged with illegally cultivating marijuana and the plants and equipment were seized, but the charges were eventually dropped and the plants and equipment returned.
In April 2007, defendant's residence was again searched by police, who again discovered his growing and processing operation, this time with a current physician's recommendation for defendant's use of medical marijuana.
As a result of the 2005 and 2007 searches, defendant was charged with two counts of cultivation and one count of possession of marijuana for sale, in violation of Health and Safety Code sections 11358 and 11359.
All further section references will be to the Health and Safety Code unless otherwise indicated.
At trial, defendant contended his operation was legal pursuant to Health and Safety Code section 11362.775, which permits an association or collective to cultivate medical marijuana if it is not done for profit. He contended that he grew and processed marijuana for himself and four to six other medical marijuana patients as part of an informal collective, and did not profit from the cultivation, but was reimbursed only for expenses.
The prosecution submitted defendant's financial information. Defendant's bank statements showed he made near-daily deposits in even-dollar amounts, usually in multiples of $100, via ATM transactions and PayPal transfers. The deposits totaled more than $95,000 in 2005, $80,000 in 2005, and $30,000 during the first four months of 2007. Defendant's tax returns showed he reported much less personal and business income: $37,000 in 2005, $47,000 in 2006, and $43,000 in 2007. Defendant had a mortgage payment of $4,000 per month ($48,000 per year), more than his reported income, and a car payment of $700 per month ($6,300 per year).
Defendant testified he derived his income from working "video production" in various capacities, selling memorabilia on eBay and through other auction houses, and promoting live concerts. He also had roommates who paid rent. His medical marijuana cultivation expenses were from $13,000 to $24,000 per year. He was not reimbursed anywhere near this amount.
On cross-examination, defendant testified he kept few records and was unable to document his income or medical marijuana expenses. After his crop and equipment were seized in 2007, he stopped paying his mortgage and his house was foreclosed upon.
A cultivation and consultation expert called by the defense testified defendant's utilities for the medical marijuana operation would cost approximately $750 per month, and the operation would support three or four typical medical marijuana patients.
The court instructed the jury that section 11362.775 does not permit collective or cooperative cultivation of medical marijuana for profit.
The jury found defendant guilty on all counts, and he was sentenced to one year in the county jail and placed on formal probation for a term of five years.
DISCUSSION
Defendant contends the court erroneously instructed the jury that it is illegal to profit from collective cultivation of medical marijuana, insufficient evidence supported the finding that he profited from his medical marijuana operation, and his due process rights were violated by vindictive prosecution.
1. The Jury Was Properly Instructed.
Section 11358 makes cultivation of marijuana illegal unless otherwise provided by law. Section 11359 makes possession of marijuana for sale illegal except as otherwise provided by law.
In 1996, the California electorate approved Proposition 215, codified as the Compassionate Use Act of 1996. (§ 11362.5.) The act was designed to ensure that Californians who obtain and use marijuana for specified medical purposes upon the recommendation of a physician are not subject to criminal sanctions. (§ 11362.5, subd. (b)(1)(B).) The Compassionate Use Act provides: "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).)
Ambiguities in the Compassionate Use Act led the Legislature to enact the Medical Marijuana Program Act (MAMA), which added sections 11362.7 through 11362.83 to the Health and Safety Code. (See People v. Wright (2006) 40 Cal.4th 81, 93.) Pertinent here are sections 11362.765 and 11362.775.
Section 11362.765 immunizes from liability under sections 11358 and 11359 (the statutes under which defendant was charged) "[a]ny individual who provides assistance to a qualified [medical marijuana] patient . . . ." (§ 11362.765, subd. (b)(3).) However, section 11362.765 also provides that "nothing in this section shall . . . authorize any individual or group to cultivate or distribute marijuana for profit." (§ 11362.765, subd. (a).)
Section 11362.775 provides that "[q]ualified patients . . . who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under" sections 11358 or 11359.
It is undisputed that when his house was searched in 2007 (but not when it was searched in 2005) defendant was a qualified medical marijuana patient.
Defendant contends that although section 11362.765 prohibits deriving profit from cultivating medical marijuana for individual use, section 11362.775 contains no similar prohibition against deriving profit from cultivating medical marijuana as part of an association or collective. He relied on the latter section, not the former, in asserting his collective cultivation defense. Therefore, whether or not he profited was irrelevant to the defense, and the court erred when it instructed the jury otherwise.
The argument is without merit. The MMPA "specifies that collectives, cooperatives, or other groups shall not profit from the sale of marijuana." (People v. Hochanadel (2009) 176 Cal.App.4th 997, 1009; § 11362.765, subd. (a) ["nothing in this section shall authorize . . . any . . . group to cultivate or distribute marijuana for profit"].) Section 11362.775, if it applies at all, states only that qualified patients "who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under [sections 11358 or 11359] . . . ." Defendant was not charged solely with associating with others collectively or cooperatively to cultivate marijuana, he was charged with cultivating and possessing marijuana for sale.
The jury was properly instructed that the medical assistance defense is unavailable when a cooperative, collective or other group profits from cultivating medical marijuana.
2. Section 11362.765 Is Not Unconstitutionally Vague.
Defendant contends that as applied here, the word "profit" is unconstitutionally vague because it is undisputed he was entitled to receive reimbursement for expenses (People v. Urziceanu (2005) 132 Cal.App.4th 747, 785), and the difference between reimbursement and profit is uncertain. We disagree.
Due process principles require that a criminal statute "'"be definite enough to provide (1) a standard of conduct for those whose activities are proscribed and (2) a standard for police enforcement and for ascertainment of guilt."' [Citations.]" (Williams v. Garcetti (1993) 5 Cal.4th 561, 567.) "The starting point of our analysis is 'the strong presumption that legislative enactments "must be upheld unless their unconstitutionality clearly, positively, and unmistakably appears. [Citations.] A statute should be sufficiently certain so that a person may know what is prohibited thereby and what may be done without violating its provisions, but it cannot be held void for uncertainty if any reasonable and practical construction can be given to its language."' [Citation.]" (Id. at p. 568.)
Section 11362.765 permits "compensation for actual expenses, including reasonable compensation incurred for services provided." (Id., subd. (c).) "Profit" is commonly defined as any compensation that exceeds expenses. In light of this common understanding, the word is not so vague that persons of common intelligence must guess at its meaning. We believe it provided defendant the fair notice due process requires.
3. Section 11362.765 Did Not Amend The Compassionate Use Act.
Defendant contends the prohibition against profit found in section 11362.765 impermissibly amends the Compassionate Use Act. We disagree.
"The Legislature . . . may amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without their approval." (Cal. Const., art. II, § 10, subd. (c).) "The purpose of California's constitutional limitation on the Legislature's power to amend initiative statutes is to 'protect the people's initiative powers by precluding the Legislature from undoing what the people have done, without the electorate's consent.' [Citations.]" (Proposition 103 Enforcement Project v. Quackenbush (1998) 64 Cal.App.4th 1473, 1484.) "[A]n amendment includes a legislative act that changes an existing initiative statute by taking away from it." (People v. Kelly (2010) 47 Cal.4th 1008, 1027.)
The Compassionate Use Act did not decriminalize profit-based cultivation or distribution of marijuana and is silent on the issue of cooperative or collective cultivation. Because the act does not specifically authorize collective or cooperative medical marijuana cultivation or profit-based distribution, any limitation on deriving profits therefrom is not an invalid modification of the act. (See Qualified Patients Assn. v. City of Anaheim (2010) 187 Cal.App.4th 734, 749-750; People v. Hochanadel (2009) 176 Cal.App.4th 997, 1011-1014.)
4. Sufficient Evidence Supported The Finding Of Profit-Based Cultivation.
Defendant contends insufficient evidence supported the finding that he profited from cultivating medical marijuana. We disagree.
Defendant made near-daily ATM deposits and PayPal transfers in whole-dollar amounts, usually in multiples of $100, totaling more than $95,000 in 2005, $80,000 in 2005, and $30,000 during the first four months of 2007, much more than his reported income. Defendant testified the cost to operate his medical marijuana operation was approximately $13,000 to $24,000 per year. Defendant testified he was reimbursed for nowhere near these expenses by medical marijuana patients but obtained rent from roommates and derived income from sales on eBay and other auction sites and work in video production and concert promotion. Although defendant's description of his finances conceivably explained the deposits, the jury was entitled to conclude the better explanation was profit-based sale of marijuana, especially given that after sales stopped, defendant stopped paying his mortgage.
5. Defendant Was Not Convicted As A Result of Vindictive Prosecution.
Defendant contends the prosecution was vindictive. He argues the deputy district attorney filed and dismissed charges in 2005 before filing again in 2007, and had implied to his attorney that charges would not be filed at all.
"The due process clause of the California Constitution also prohibits increased charges motivated by prosecutorial vindictiveness." (In re Bower (1985) 38 Cal.3d 865, 876.) For example, a prosecutor may not increase charges against a criminal defendant in retaliation for the defendant's exercise of his constitutional rights. (People v. Jurado (2006) 38 Cal.4th 72, 98.) Here, the prosecutor did not increase charges after defendant's exercise of constitutional rights. He choose which charges to file, dismissed charges when he considered them to be unwarranted, and refiled them after further investigation. "The California cases place great emphasis on when during the proceedings the prosecutor's allegedly vindictive action occurs." (In re Bower, supra, at p. 876.) Due process does not prohibit a prosecutor from exercising discretion in making initial choices on which charges to file or in refiling dismissed charges upon further investigation.
6. Defendant Was Not Convicted As A Result Of Entrapment By Estoppel.
Defendant argues dismissal of charges against him in 2005 led him to believe his medical marijuana operation was legal, and the prosecution was estopped from later charging him based on the same conduct. The argument is without merit.
The defense of entrapment by estoppel "rest[s] on the premise that the government may not actively provide assurances that conduct is lawful, then prosecute those who act in reasonable reliance on those assurances." (People v. Chacon (2007) 40 Cal.4th 558, 568.) "Under these limited circumstances, fundamental fairness supports the defense, even when the prosecution can prove each element of the crime." (Ibid.)
A prosecutor may drop charges for many reasons, not the least being that he or she believes a conviction cannot be obtained based on the available evidence. Nothing in the record suggests that by dropping the charges in 2005 the prosecutor considered defendant's conduct to be lawful. Defendant could not have reasonably relied on any such assurance.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
CHANEY, J. We concur:
ROTHSCHILD, Acting P. J.
JOHNSON, J.