Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06SCR03433
BUTZ, J.
Following the denial of his renewed motion in limine to present a “medical marijuana defense,” and in order to preserve the issue for appeal, defendant Scott Spencer Holt submitted the issue of his guilt to the trial court on certain exhibits, stipulations, and the allegations of the information. The court found him guilty of transporting marijuana (Health & Safety Code, § 11360, subd. (a)) and possessing more than an ounce of the same (§ 11357, subd. (c)). The court placed defendant on probation, and because it believed “that there is a substan[tial] legal question here [the] imposition of those terms is stayed pending your appeal; all terms. You will be continued on your bail bond.”
Defendant had previously waived his right to a jury trial.
Undesignated statutory references are to the Health and Safety Code.
On appeal, defendant continues to pursue the issue of his entitlement to this defense. We shall reverse the judgment and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
After the court set the matter for trial, the prosecutor filed a motion “to exclude Medical Marijuana Defense.” In the statement of facts, the prosecutor asserted that during an October 2006 traffic stop, the California Highway Patrol found about 85 ounces (5.32 pounds) of marijuana in the car. Defendant would not reveal its source. He had an expired “marijuana card.” He admitted that the marijuana belonged to him, and that he was donating it to a Southern California “cannabis club.” A defense witness would confirm that the witness had asked defendant to deliver the marijuana after law enforcement had confiscated the crop belonging to the witness, and the witness had intended to reimburse defendant in kind at a later date. The defense had not provided any evidence that defendant was a “primary caregiver” under the Medical Marijuana Program (MMP) Act (§ 11362.7 et seq.).
The prosecution’s motion argued that defendant was not a “qualified patient” under the MMP because he did not have a current medical authorization for the use of marijuana to treat an illness (see § 11362.77, subd. (f) [cross-referencing § 11362.5, subd. (d)]), he possessed more marijuana than allowed under the law (see § 11362.77), and he was not a primary caregiver (see § 11362.7, subd. (d)) entitled to invoke an MMP defense to a charge of transportation (see § 11362.765). The prosecutor further argued that transportation of marijuana was not an offense to which a defense under the Compassionate Use Act of 1996 (CUA) (§ 11362.5, subds. (a), (d)) applied.
In his opposition to the prosecution’s motion (filed on the date of the hearing on the motion), defendant asserted that he in fact had a current “prescription” for the medical use of marijuana at the time of his arrest; it was simply not on his person. (He attached copies of his September 2005 and 2006 recommendations.) Defendant argued that he possessed and transported an amount of marijuana that was reasonable for his personal use under the recommendation of his physician. Defendant also asserted that he had been acting at the behest of a qualified patient and caregiver, attaching a note from the person in Covina making the request for the marijuana from defendant (Bruce B.), Bruce B.’s marijuana recommendation, and the recommendations of others in Bruce B.’s group along with their designations of Bruce B. as their primary caregiver.
An uncle with “ALS” (amyotrophic lateral sclerosis) apparently had recommended defendant’s “meds” to Bruce B.
At the hearing on June 14, 2007, both parties submitted the matter on the motion and defendant’s written “response.” The trial court stated that for a charge of transportation to other people, a medical authorization for the use of marijuana was not “a defense for compassionate use absent some more facts being given to me. You might be able to have those facts available at the time of trial, but if that’s all I’m getting right now, I’m denying the offered defense.” When defense counsel asked for clarification, the court said defendant’s possession of “5.32 pounds--if he was claiming that was his, I think you’re going to have problems off of that defense [presumably § 11362.765, subd. (b)(1)]. If he’s claiming that he transports to others, then he’s going to... have to have some type of... permission from the state to provide that.”
We presume the court was making reference to the identification card authorized under the MMP that documents the holder as a qualified patient under the MMP and identifies the patient’s primary caregiver (§ 11362.7, subd. (g)), who can claim an MMP defense to transporting marijuana for others (§ 11362.765, subd. (b)(2)).
Thereafter defendant obtained a new attorney, who asserted in her declaration in support of substitution that she believed defendant’s response to the first motion in limine improperly relied only on CUA criteria and defendant would seek to relitigate the issue. His new attorney filed a motion in limine in October 2007 to present a defense pursuant to MMP criteria. The motion did not dispute that defendant might not have been entitled to raise a defense under the CUA to a charge of transportation. However, it asserted that there was a proper defense under the MMP.
Fleshing out the facts of defendant’s October 2006 arrest, the motion noted that defendant had been a passenger in the detained vehicle, who admitted possessing the marijuana in a clear bottle in the center console, then produced another baggie from behind the driver’s seat. Although the occupants of the car denied the presence of any more contraband, a search of the car revealed a backpack in the backseat with a substantial additional amount of marijuana. Defendant admitted possessing all of the marijuana seized, explaining he was a qualified patient. He showed the officer the expired 2005 recommendation (which included a note that he was authorized to exceed the use limits of the MMP) and a membership card for a “Santa Cruz Patients Collective,” and said that he was in the process of renewing his recommendation. The prosecutor’s investigator had spoken with Bruce B., who confirmed that he cultivated medical marijuana for himself and a collective of 15 other qualified patients. Bruce B. also told the investigator that he had contacted defendant after the Covina authorities had confiscated his entire supply. When the investigator contacted defendant’s doctor, the doctor was unable to confirm that defendant was currently his patient (although he may have seen him in the past). Defendant’s doctor, however, would testify that he had in fact examined defendant as recently as September 2006, at which time defendant’s condition (reflected in his patient notes as including insomnia, anorexia, and back pain from renal problems) required the use of two ounces of inhaled marijuana per week or four ounces if consumed.
As noted earlier, his active recommendation was dated September 2006.
Defendant argued that, as a qualified patient, he was entitled to transport marijuana under the MMP, and the amount he was transporting did not render him ineligible to claim the defense because it was pursuant to the recommendation of his physician. He also argued that the evidence indicated he was a member of the Covina medical marijuana collective, and therefore could transport marijuana to them without incurring criminal liability.
The prosecutor did not contest the facts as recited in defendant’s motion. The prosecutor confined his written response to asserting that defendant could not relitigate the issue (ignoring the inherently tentative nature of rulings on motions in limine (see Johnson v. Tosco Corp. (1991) 1 Cal.App.4th 123, 141) or the court’s indication previously that it would entertain a renewed motion at the time of trial). At the hearing on the motion, the prosecutor asserted that a person can transport marijuana only for personal use and expressed doubts that defendant could prove he was a qualified patient, with what the prosecutor believed was a backdated 2006 recommendation, or show a need to travel with an entire year’s supply. The prosecutor argued that the evidence in any event showed only that defendant was delivering marijuana to a collective with which he had only an undocumented connection. Defense counsel responded that cooperation among collectives was among the activities that the MMP included within its protection. Defendant eschewed any reliance on the status of being a designated primary caregiver transporting marijuana to his qualified patient. (§ 11362.765, subd. (b)(2).)
Defendant adhered to this concession at oral argument. He also does not claim that he was an individual providing assistance to a qualified patient’s designated caregiver in administering marijuana to the patient. (§ 11362.765, subd. (b)(3).)
After taking the matter under submission, the court issued a written ruling later the same day. As best we can synthesize its components, the court cited the absence of any evidence of defendant’s membership in the West Covina collective or being a primary caregiver (which defendant had already abjured) as preventing him from a claimed defense that he was cooperating with the West Covina collective in transporting the drug (§ 11362.775). As for his defense that he was transporting the marijuana in furtherance of his own personal use, the court found that the parties had provided little more than conjecture and speculation, “none of which even rises collectively to the minimal standard needed for a motion in limine.”
Defendant presented a “supplementary” declaration from his physician in a request that the court reconsider its ruling. The physician asserted that there indeed had been a medical examination of defendant in September 2006, after which he recommended the use of two ounces per week of marijuana. The doctor believed that the amount found in defendant’s possession was consistent with this recommendation. He denied telling the investigator that defendant was not a current patient. The prosecutor filed a declaration from his investigator, which did not add anything material to what we have previously related. The trial court denied the renewed motion without further elaboration.
DISCUSSION
Defendant takes issue with the trial court’s analysis in its several rulings on his entitlement to present a defense under the MMP. Although we ordinarily review a trial court’s decision to exclude evidence for an abuse of discretion (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 363(8), p. 419), when the nonstatutory procedure of a motion in limine strays beyond its traditional confines and results in the entire elimination of a cause of action or a defense, we treat it as a demurrer to the evidence and review the motion de novo, lest it be used to evade the more exacting standards for such a motion (Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1593-1595). This means we will review all the facts in a manner that favors the defendant in deciding the sufficiency of the evidence to raise a reasonable doubt under the theories of his defense. (Id. at p. 1595; cf. People v. Jones (2003) 112 Cal.App.4th 341, 350 [same standard in reviewing a preliminary fact hearing on CUA defense (Evid. Code, § 402)].) Accordingly, we do not need to respond to the criticisms in defendant’s brief of the analysis in the trial court’s rulings, and simply address for ourselves whether defendant has established a plausible defense.
Considered in isolation, defendant’s proffered defense that he was transporting marijuana for personal use, which is exempt from criminal liability only under the MMP (§ 11362.765, subd. (b)(1)), falls on weak evidentiary ground. Beyond establishing that he was a qualified patient, defendant simply asserted that the quantity of marijuana was within the ambit of his personal use. However, the marijuana in the car represented several months’ worth of medication even if he was exclusively consuming it instead of smoking it. This makes the claim of personal use rather implausible, absent some evidence in explanation of how this significant quantity was reasonably related to his medical needs for the duration of his transportation. (§ 11362.77, subd. (b).) Moreover, defendant had never made any claim of personal use until the hearings in limine, asserting instead (according to the highway patrolman) only the purpose of furnishing it to others for their use. However, it is not the agency of a motion in limine to weigh the plausibility of possible defense theories justifying the possession of a seemingly excessive amount of marijuana, or resolve credibility conflicts between witnesses. Even though it would seem this defense of transportation for personal use is destined to fail, defendant is entitled to present the defense to a jury. (Cf. People v. Windus (2008) 165 Cal.App.4th 634, 641 [CUA; even where defendant does not provide any evidence at hearing in limine regarding amount needed for personal use, it is for jury to decide as long as defendant has recommendation of doctor for marijuana use for medical treatment].)
The CUA does not provide a defense to marijuana transportation in a car. (People v. Young (2001) 92 Cal.App.4th 229, 237; People v. Trippet (1997) 56 Cal.App.4th 1532, 1550-1551 [even if there is possible defense for incidental marijuana transportation that is reasonably related to patient’s needs under CUA, transporting two pounds in car exceeds its bounds].)
At oral argument, the People conceded that defendant had adequately established this element for purposes of a motion in limine.
For example, he never suggested that he was in transit from one residence to another (or was using the car as a residence), or that he had recently acquired a periodic stockpile from his source.
Moreover, even if we agreed that defendant had failed to establish a defense of transporting marijuana for his personal medical use, this leaves the defense of being a qualified patient who is transporting marijuana in association with others who come within the MMP “in order collectively or cooperatively to cultivate marijuana for medical purposes.” (§ 11362.775.) We considered evidence in support of such a defense in People v. Urziceanu (2005) 132 Cal.App.4th 747. We there noted that this defense in the MMP was intended to respond to the purpose expressed in the CUA of providing for the safe and affordable distribution of marijuana to qualified patients. (Id. at pp. 782-783.) We found that the extensive evidence we had related earlier in that opinion of the regular connections between the defendant and others in cultivating and distributing marijuana to qualified patients (id. at pp. 763-765) was enough to entitle him to raise a defense under section 11362.775 on retrial (to allow the retroactive application of the MMP to his case). (Urziceanu,at p. 786.)
Again, the evidence supporting defendant’s assertion that he was collectively or cooperatively associating with the 16 people in Bruce B.’s group is scant. Bruce B. was not even previously familiar with defendant, hearing about him only through Bruce B.’s uncle. However, Urziceanu does not purport to create a sine qua non standard for marijuana collectives. An association must begin somewhere. If we are to further the announced intent of the Legislature to “‘[e]nhance the access of patients and caregivers to medical marijuana’” in its enactment of the MMP (Urziceanu, supra, 132 Cal.App.4th at p. 783), we must allow a defendant to argue to a jury that an isolated transaction is the beginning of a cooperative association with an established group.
As a result, we conclude that defendant should be entitled to present both defenses either jointly or alternatively (e.g., that a certain portion of the transported marijuana represented his “travel pack” while the remainder was intended to forge a connection with the Covina group). We therefore find that the trial court erred in precluding him from pursuing these options. We must reverse the judgment to allow defendant to proceed to trial with the benefit of these defenses.
DISPOSITION
The judgment is reversed and the matter remanded with directions to grant defendant’s motion in limine to allow him to present the defenses of transportation for personal use and in association with a marijuana collective.
We concur: SCOTLAND, P. J., RAYE, J.