Opinion
NOT TO BE PUBLISHED
Super. Ct. No. YKCRBF052068
CANTIL-SAKAUYE, J.
Following a jury trial, defendant Daryl Lee Kechloian was convicted of cultivating marijuana and was granted probation for three years. He appeals, contending the trial court violated his constitutional rights by precluding any reference to the Compassionate Use Act and that the court erred in instructing the jury it could consider defendant’s failure to explain or deny evidence against him. We shall affirm.
RELEVANT FACTUAL BACKGROUND
After receiving complaints about defendant growing marijuana, and after conducting an aerial observation which confirmed marijuana plants on the property, Detectives Darrel Lemos and Mark Merrill went to defendant’s home. In addition to the aerial view, the marijuana plants were visible from the highway. Upon the detectives’ arrival, defendant came to the road and said, “I’ve been expecting you,” asked if they wanted to see his plants and took them to the garden. Defendant told the officers he was in charge of and oversaw the operation of cultivating the marijuana plants. Defendant indicated he and other individuals grew the marijuana jointly, assisted each other in the cultivation and harvest and would take the end product, separate it and divide it evenly. Defendant also explained he would “maybe” receive “some bud” in exchange for letting others grow marijuana at his place.
“Bud” is the female cola which has the highest content of T.H.C. in marijuana plants. T.H.C. is the psychoactive part of marijuana.
On defendant’s property was a large continuous garden with 151 immature marijuana plants. Because there was Proposition 36 documentation for defendant and two others supporting 36 plants being at the residence, officers seized 115 of the marijuana plants. Defendant was allowed to choose the 36 plants he wanted to keep. Of the remaining 115, 90 were involved in the prosecution of defendant and the remaining 25 plants were related to a third party and being handled in a separate case. The garden could have produced 10 pounds of “bud” which would have a value of about $35,000. Defendant claimed there were seven people growing marijuana in the garden and, initially, he named four people: Shilo Veater; Charles Sterm; Joe Beltran; and Eric Skoglund. He produced medical marijuana documentation only for himself, Veater and Beltran. Subsequently, he named five people, including “Debra.” Defendant also asserted only 12 of the plants belonged to him.
Defendant’s expert witness testified that immature meant not yet sexually defined.
Skoglund was the person who allegedly had the 25 plants.
PROCEDURAL HISTORY
Defendant was charged with cultivating marijuana. The jury found him guilty as charged. The court suspended imposition of sentence and placed defendant on three years of formal probation.
DISCUSSION
I.
Defendant contends the trial court erred in precluding all reference to the Compassionate Use Act (CUA), as it would have provided either a complete defense or an explanation which probably would have led to an acquittal or a jury deadlock. Specifically, he argues the trial court misinterpreted the CUA and its implications, that there is no 12-plant maximum, that medical marijuana patients may lawfully cultivate marijuana collectively, and that the trial judge failed to consider the CUA’s impact on the element of intent. We are not persuaded.
Under the CUA, patients and patients’ primary caregivers have limited immunity from prosecution for cultivating marijuana for the patient’s personal medical purposes upon written or oral recommendation or approval of a physician. (Health & Saf. Code, § 11362.5, subd. (d); People v. Mower (2002) 28 Cal.4th 457, 470-471.) The Medical Marijuana Program Act (MMP) added a number of provisions which both expanded and clarified the scope of the CUA. (See People v. Urziceanu (2005) 132 Cal.App.4th 747, 782-786.) Among those provisions, the MMP limits “how much marijuana a patient or qualified primary caregiver may possess or cultivate for personal medical uses, and authorizes physicians to prescribe more than this amount under certain circumstances.” (Id. at p. 783.) Also, as relevant to this case, the MMP allows qualified patients or primary caregivers to collectively or cooperatively cultivate marijuana for medical purposes. (Id. at p. 785.)
Hereafter, undesignated statutory references are to the Health and Safety Code.
Section 11362.77 provides in pertinent part: “(a) A qualified patient or primary caregiver may possess no more than eight ounces of dried marijuana per qualified patient. In addition, a qualified patient or primary caregiver may also maintain no more than six mature or 12 immature marijuana plants per qualified patient. [¶] (b) If a qualified patient or primary caregiver has a doctor’s recommendation that this quantity does not meet the qualified patient’s medical needs, the qualified patient or primary caregiver may possess an amount of marijuana consistent with the patient’s needs. [¶] (c) Counties and cities may retain or enact medical marijuana guidelines allowing qualified patients or primary caregivers to exceed the state limits set forth in subdivision (a).”
A. Exclusion of the CUA Defense
On the prosecution’s motion, the court held an Evidence Code section 402 hearing. Defendant testified he was currently using marijuana for medical reasons because he had collapsed disks in his back and had been using it for a number of years. He submitted into evidence an informed medical consent verification from Dr. Hopkins dated in May 2005. Defendant testified this was the form he gave to officers when they came to his home in August 2005.
The court found there was insufficient evidence to make a preliminary determination that defendant was protected by the limited statutory immunity of the CUA and therefore, the issue could not go to the jury. Specifically, the court ordered defendant “not adduce any evidence, oral or documentary, from any witness on direct examination or cross-examination on the issue of the defense of the [CUA] Health and Safety Code section 11362.5 et. seq.” The court also ordered that defendant would “not be permitted to address the jury in opening statement or in closing argument on the issue or [sic] the defense of the [CUA] Health and Safety Code section 11362.5 et. seq.”
“At a[n Evidence Code] section 402 hearing, ‘[t]he proponent of the proffered evidence has the burden of producing evidence as to the existence of the preliminary fact, and the proffered evidence is inadmissible unless the court finds that there is evidence sufficient to sustain a finding of the existence of the preliminary fact, when: [¶] (1) The relevance of the proffered evidence depends on the existence of the preliminary fact . . . .’ [Citation.] [¶] Here, the ‘proffered evidence’ was the evidence of defendant’s Compassionate Use Act defense as a whole.” (People v. Jones (2003) 112 Cal.App.4th 341, 349.) The “preliminary fact[s]” were the elements of the defense, specifically whether defendant had the recommendation of a physician that he required more than the amounts indicated in section 11362.77, or whether he was collectively cultivating marijuana with an appropriate number of qualified patients or primary caregivers to justify the number of plants found. (See Evid. Code, §§ 400, 401; People v. Galambos (2002) 104 Cal.App.4th 1147, 1156.) The relevance of the CUA defense depended on the existence of one of these facts. As “the proponent of the defense, defendant bore ‘the burden of producing evidence as to the existence of the’ [preliminary facts as delineated above] . . . and the evidence of the defense as a whole was inadmissible unless defendant produced sufficient evidence to sustain a finding of the existence” of those preliminary facts. (People v. Jones, supra, at p. 350.)
Evidence Code section 402 is designed to perform a “gate-keeping” function. That is, if the defendant produces evidence at the hearing which, if believed by a jury, would be sufficient to establish that he had a medical recommendation to exceed the statutory amounts or was collectively cultivating the marijuana with other qualified patients or primary caregivers, then and only then should the limited statutory immunity defense under the CUA or MMP go to the jury to decide. However, if the defendant fails to produce sufficient evidence to raise a reasonable doubt about the existence of those facts, the trial court is justified in keeping the CUA and the MMP defense from the jury. (People v. Jones, supra, 112 Cal.App.4th at p. 350.)
People v. Mower (2002) 28 Cal.4th 457, 464, discussed this procedure concluding that as to the facts underlying the defense provided by section 11362.5, subdivision (d), the CUA, defendant is required merely to raise a reasonable doubt, not prove the defense by a preponderance of the evidence.
At the 402 hearing, defendant did not produce sufficient evidence that the 90 plants in his garden fell under the limited statutory immunity of the CUA or MMP. Defendant produced a physician’s recommendation for medical marijuana for himself. This recommendation entitled him to maintain no more than 12 immature plants. Defendant also produced medical documentation for two other qualified patients, Shilo Veater and Jose Beltran. This entitled the three qualified patients (including defendant) with medical documentation to cultivate marijuana together and to maintain no more than a total of 36 immature plants. These plants were excluded from the prosecution.
Defendant produced no evidence that a doctor had recommended that 12 immature plants each would not meet his needs or the needs of Veater or Beltran. Nor did defendant present any evidence that his manner of use, or that of Veater or Beltran, required the possession of more than the statutory amount of 12 immature plants each. (Cf. People v. Wright (2006) 40 Cal.4th 81, 97 [Given the MMP, where defendant’s doctor testified at trial that the amount of marijuana found in defendant’s possession was appropriate for his medical needs and his manner of use, court should have instructed on CUA] (Wright).)
Despite naming five people who used the garden to grow marijuana and referring to seven people who grew marijuana in the garden, at trial defendant did not produce any evidence that there were other qualified patients or primary caregivers collectively cultivating marijuana at his property or any evidence as to recommendations regarding the medical needs of those named. In short, defendant did not produce any evidence which would have brought him within the purview of the additional MMP exceptions and allowed him to maintain the 90 plants for which he was being prosecuted. Because defendant did not produce evidence as to the requisite preliminary facts, the trial court properly excluded evidence of the CUA from the jury.
Our conclusion that the trial court properly excluded any mention of the CUA also resolves defendant’s claim that the trial court had a duty to instruct sua sponte on the CUA. “A court must instruct sua sponte on general principles of law that are closely and openly connected with the facts presented at trial.” (People v. Ervin (2000) 22 Cal.4th 48, 90.) The trial court must include sua sponte instructions “‘on particular defenses and their relevance to the charged offense . . . if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.’” (People v. Wickersham (1982) 32 Cal.3d 307, 326, disapproved on other grounds in People v. Barton (1995) 12 Cal.4th 186, 200.) Because evidence of the CUA was properly excluded, defendant could not rely on that defense. And there was no evidence, let alone substantial evidence, supporting the defense. Accordingly, it was not a general principle of law relevant to the issues of the case and the court had no duty to instruct sua sponte on that issue.
B. Statutory Maximums and Collective Cultivation under the MMP
Defendant argues that section 11362.77 does not create a “strict 12-plant limit.” He claims this prosecution theory was “clearly wrong under the plain terms of the statute.” We disagree. The plain language of the statute states a maximum amount of marijuana which may be possessed in the absence of a recommendation from a doctor that a qualified patient requires more than that amount. (§ 11362.77, subds. (a) & (b); see also People v. Frazier (2005) 128 Cal.App.4th 807, 828.)
Defendant correctly quotes the statute. Section 11362.77, subdivision (b) states, “If a qualified patient . . . has a doctor’s recommendation that this quantity does not meet the qualified patient’s medical needs, the qualified patient . . . may possess an amount of marijuana consistent with the patient’s needs.” (Italics added.) However, without any critical analysis, defendant relies upon a statement in People v. Wright, supra, that “the amounts set forth in section 11362.77, subdivision (a) were intended ‘to be the threshold, and not a ceiling.’” (Wright, supra, 40 Cal.4th at p. 97.)
In Wright, the defendant presented evidence of precisely the nature that was missing in this case. Defendant Wright presented evidence from a doctor that had recommended defendant use marijuana for his medical problems, and that defendant had indicated he preferred eating marijuana to smoking it, which required a greater quantity. (Wright, supra, 40 Cal.4th at pp. 86-87.) The doctor also testified that defendant’s use of a pound of marijuana over a two- to-three-month period was reasonable given defendant’s medical records, physical examination and his preferred manner of use. (Id. at pp. 87-88.) With this kind of evidence, the statutory exception of the MMP is met and the 12 immature plants becomes “the threshold, . . . not [the] ceiling.” (Id. at p. 97.) Absent this kind of evidence, the statutory maximum, as to immature plants, remains 12.
Defendant also contends the trial court overlooked the proviso that medical marijuana patients may lawfully cultivate marijuana collectively. As above, however, defendant did not produce evidence sufficient to raise a reasonable doubt that there were enough other qualified patients or primary caregivers collectively cultivating the marijuana at his property to justify the cultivation of 90 immature plants. Only two other qualified patients were named, Veater and Beltran. No primary caregivers were named. The plants which Veater and Beltran were permitted to maintain were excluded from the prosecution. To fall within the exceptions of the MMP, defendant would have had to produce some evidence that those he had named had doctor’s recommendations indicating their medical needs required more than 12 immature plants or that seven to eight additional qualified patients or caregivers were collectively cultivating marijuana in his garden. He did neither. Thus, the court did not overlook the provision of the MMP that qualified patients may cultivate marijuana together; rather, defendant did not produce sufficient evidence justifying the 90 plants in his garden came within the provisions of the MMP.
C. Mistake of Law
Defendant argues the court failed to “take account of the effect of the CUA on the intent element of the crime.” Defendant claims that if his actions “were not entirely lawful under the CUA, . . . it is plain that he and his cohorts may well have acted out of mistake, and without any criminal intent, i.e., believing that their collective garden was legal . . . .” Accordingly, defendant concludes the court was obligated to instruct on a mistake of fact defense, and was obliged to allow the introduction of evidence of defendant’s effort to conform his conduct to the CUA.
Initially, we disagree with the contention that if defendant was acting with a belief his marijuana garden was legal under the CUA and the MMP, defendant would have been relieved of criminal liability because of a lack of criminal intent. As in People v. Young (2001) 92 Cal.App.4th 229, 233-237, and People v. Urziceanu, supra, 132 Cal.App.4th at pp. 775-776, defendant’s alleged mistake does not provide him with a defense. Here, defendant’s alleged mistake was that he believed the marijuana garden was legal under the CUA and the MMP. This is a mistake of law, not a mistake of fact.
A mistake of fact, for example, would have been if defendant and his cohorts had honestly believed they were growing oregano, not marijuana. (See People v. Young, supra, 92 Cal.App.4th at pp. 234-235.)
A good faith mistake of law is a defense, “if the mistake negates the specific intent required for the offense. [Citations.] It is clear that an honest or good faith mistake of law does not negate general intent. [Citation.]” (People v. Howard (1984) 36 Cal.3d 852, 863.)
In other words, a mistake of law is not a defense to a general intent offense. (People v. Vineberg (1981) 125 Cal.App.3d 127, 137; People v. Ramsey (2000) 79 Cal.App.4th 621, 632.)
Health and Safety Code section 11358 is a general intent crime. The only intent required was the intent to cultivate marijuana. Defendant admitted he planted and grew marijuana plants and that he knew the substance planted and cultivated was marijuana. He was thus aware of all of the facts that brought his conduct within the prohibition of section 11358. He knew he was cultivating marijuana and intended to do so, although he now claims it was under the mistaken belief that it was proper to do so. His mistaken belief does not negate the requisite intent, and provides no defense to the charge. Thus, the trial court had no obligation to instruct the jury on mistake of fact. Because there was no obligation to instruct on a mistake of fact, there was no obligation “to allow evidence of defendant’s effort to conform his conduct to the terms of the CUA.”
II.
Defendant next contends the trial court erred in instructing the jury with Judicial Council of California Criminal Jury Instructions (2007-2008), CALCRIM No. 361. CALCRIM No. 361 states, “If the defendant failed in his testimony to explain or deny evidence against him, and if he could reasonably be expected to have done so based on what he knew, you may consider his failure to explain or deny in evaluating that evidence. Any such failure is not enough by itself to prove guilt. The People must still prove each element of the crime beyond a reasonable doubt. [¶] If the defendant failed to explain or deny, it is up to you to decide the meaning and importance of that failure.” Defendant also complains the court omitted the critical first “if” in the instruction.
CALCRIM No. 361 replaces CALJIC No. 2.62 and is based on Evidence Code section 413. (Bench Note to CALCRIM No. 361.)
The reporter’s transcript does omit the word “if” in the oral instruction of the jury. However, the written instructions provided to the jury were correct. “[M]isreading instructions is at most harmless error when the written instructions received by the jury are correct. [Citation.]” (People v. Box (2000) 23 Cal.4th 1153, 1212.)
As with CALJIC No. 2.62, CALCRIM No. 361 suffers no constitutional or other infirmity and may be given in an appropriate case. (People v. Saddler (1979) 24 Cal.3d 671, 681; People v. Lamer (2003) 110 Cal.App.4th 1463, 1470.) Whether the trial court should give CALCRIM No. 361 depends on the specific facts of the case. (People v. Mask (1986) 188 Cal.App.3d 450, 455 (Mask); People v. Roehler (1985) 167 Cal.App.3d 353, 393 (Roehler).) Where a defendant offers a “bizarre or implausible [explanation], the inquiry whether he reasonably should have known about circumstances claimed to be outside his knowledge is a credibility question for resolution by the jury.” (Mask, supra, at p. 455; citing Roehler, supra, at pp. 393-394.) For instance, if a defendant elects to testify at trial and there are “logical gaps” in his testimony, the jury may be instructed with CALCRIM No. 361. (People v. Redmond (1981) 29 Cal.3d 904, 911.)
Here, defendant gave consistently nonresponsive and bizarre answers to questions. For example,
“Q: Is Mr. Harmon your friend?
“A: I’ve known him approximately five years.
“Q: Is he your friend?
“A: Sometimes he is, and sometimes he isn’t.
“Q: Is he your friend today?
“A: I think so.
“Q: Well, were you here when Mr. Harmon said that you helped Debra plant marijuana plants?
“A: I had to do some work
“Q: Were you here when he said that? That’s a yes or a no.
“A: I had to do some work.”
After, the nonresponsive answers were stricken, the question was repeated for defendant, to which he responded, “I don’t know what you mean by helping plant marijuana plants. What are you saying?”
Defendant later acknowledged that Harmon had been telling the truth about his helping Debra plant marijuana in the garden, and continued, “But, you know, you help. I mean help, you know, not getting specific with helping.”
In another exchange, upon being asked how many of the marijuana plants had not been sexed, defendant responded, “You tell me.” After some admonishment by the court, the exchange continued.
“Q: [Defendant], do you remember that you told your attorney that the plants were not sexed?
“A: They weren’t. Everybody said that. I’m not an expert.
“Q: Well, so when you said the plants are not sexed, you didn’t know what you were talking about?
“A: I don’t have expert testimony, so what was my -- you know
“Q: When you said that the plants weren’t sexed, that’s not based on your observation; is that correct?
“A: That’s what I thought. I’m not an expert.
“Q: Well, did you think the plants were sexed or not when you answered your attorney’s question?
“A: I’m not an expert with all whatever you’re-- I’m not an expert.
“Q: Well, you were expert enough to answer your own attorney. Why aren’t you expert enough to answer me?
“A: You will accept my testimony, what I say?
“Q: Well, let’s hear what the answer is. What did you mean when you said they weren’t sexed?
“The Court: You need to respond to the answer -- answer the question.
“[Defendant]: Could you say that again?
“Q: What did you mean when you said the plants -- the 151 plants weren’t sexed?
“A: The expert said that, and I think Mr. Lemos said that, and so I guess I’m going to say it right now, too. But will you -- you want -- what do you want me to say?
“Q: So, you didn’t have an opinion yourself based on your own observation?
“A: On my own observation, I’m not an expert, and my eyes are hard to see. I can’t see that well.”
Still another exchange went as follows, “Q: In the garden were there any divisions on the ground between the marijuana plants in 2005? A: Were you -- you weren’t there to see that, were you?” These exchanges were characteristic of defendant’s testimony on cross-examination.
Defendant’s extremely nonresponsive answers created logical gaps in his testimony and rendered his explanations, such as they were, bizarre and implausible. Accordingly, the jury could conclude that defendant failed to explain circumstances about which he knew or should have known. CALCRIM No. 361 was properly given.
Further, even assuming is was error to instruct with CALCRIM No. 361, such error was harmless. As with CALJIC No. 2.62, CALCRIM No. 361 “does not direct the jury to draw an adverse inference. It applies only if the jury finds that the defendant failed to explain or deny evidence. It contains other portions favorable to the defense (suggesting when it would be unreasonable to draw the inference; and cautioning that the failure to deny or explain evidence does not create a presumption of guilt, or by itself warrant an inference of guilt, nor relieve the prosecution of the burden of proving every essential element of the crime beyond a reasonable doubt).” (People v. Ballard (1991) 1 Cal.App.4th 752, 756-757; see People v. Lamer (2003) 110 Cal.App.4th 1463, 1472-1473.)
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P.J., NICHOLSON, J.