Opinion
No. C056320.
May 28, 2008. [CERTIFIED FOR PARTIAL PUBLICATION]
Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of part II of the Discussion.
Appeal from the Superior Court of Modoc County, No. F06463, Larry L. Dier, Judge.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, John G. McLean, and George M. Hendrickson, Deputy Attorneys General, for Plaintiff and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Respondent.
OPINION
Defendant Richard Masotti was charged with possession of a controlled substance without a prescription, cultivation of marijuana, and two counts of sale of marijuana. After a jury found him guilty of cultivation of marijuana and two lesser included counts of furnishing marijuana, the trial court ordered a new trial on the cultivation charge based on instructional error and insufficient evidence.
On appeal from the order granting a new trial, the People contend (1) the trial court did not have jurisdiction to grant the motion on the basis of instructional error; (2) there was no instructional error in the jury instructions regarding medicinal marijuana; and (3) there was sufficient evidence to support a conviction. We agree that the trial court did not have jurisdiction to grant a new trial for instructional error. The court also erred in finding insufficient evidence for the conviction. Therefore, we reverse the order granting a new trial.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant is a Vietnam War veteran who suffers from pain in his knees and hip. He has used marijuana for pain management. In April 2006, he obtained a medical marijuana recommendation card. After receiving the card, he began growing marijuana at home.
In October 2006, California Highway Patrol Officer William Brian Cox arranged for an informant, Perry E., to make a "controlled buy" from defendant. Perry E. went to defendant's home and asked for marijuana, telling defendant it was his birthday. Defendant gave Perry E. the marijuana, but refused payment. Perry E. placed $10 on the table before he left.
In November 2006, Officer Cox had Perry E. perform another "controlled buy" from defendant. Defendant again gave Perry E. marijuana. Perry E. gave defendant $5.
On November 17, 2006, officers searched defendant's residence. During the search, the officers found marijuana plants, drying marijuana, and dried marijuana. The officers also found $189 in cash. Officer Cox testified the amount of marijuana recovered was within state guidelines for someone with a medical marijuana card.
The jury found defendant guilty of one count of cultivation of marijuana and two counts of furnishing marijuana. Defendant filed a motion for a new trial based solely on insufficient evidence. The trial court granted the motion for a new trial on the cultivation charge. The court stated a new trial was necessary under Penal Code section 1181, cases 5 and 6, because of instructional error and insufficient evidence. The court stated that because defendant has a medicinal marijuana card and the amount of marijuana found was within the state guidelines, the jury instructions might have misled the jury. Further, the court held that because the medical marijuana card provided a defense against prosecution for cultivation of marijuana, there was insufficient evidence to convict defendant.
DISCUSSION
The People argue the trial court abused its discretion in granting the new trial motion. They argue the court had no jurisdiction to grant a new trial for instructional error when defendant's motion did not raise that ground. They also argue the court abused its discretion by finding there was insufficient evidence to support the cultivation conviction. We agree on both points. I The Trial Court Did Not Have Jurisdiction to Grant a New Trial for Instructional Error When Defendant Did Not Raise the Issue in His Motion for a New TrialPenal Code section 1181 authorizes the court to grant a new trial under specific conditions. The relevant portions of the statute read as follows: "When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only: [¶] . . . [¶] 5. When the court has misdirected the jury in a matter of law . . .; [¶] 6. When the verdict or finding is contrary to law or evidence. . . ."
Defendant's motion for a new trial was based solely on the ground that there was insufficient evidence to convict him. He specifically argued the court had jurisdiction under Penal Code section 1181, case 6 to grant a new trial. There was no mention of instructional error or Penal Code section 1181, case 5 in his motion for a new trial.
In granting the motion, the trial court stated, "My intention to grant the motion for a new trial on [the cultivation of marijuana charge] is going to be based on [cases] 5 and 6 of the [Penal Code] section 1118-1181. [Case] 5 would be based on the grounds that I misdirected the jury and didn't instruct them about what the consequence of abusing the [medical marijuana] card was, and I think that's in and of itself a ground for reversal, or new trial."
In their opening brief, the People addressed only the question of whether there was sufficient evidence to convict defendant. In response, defendant pointed out that the People did not address the issue of instructional error and argued the issue was waived. The People then filed a reply brief arguing that the trial court did not have jurisdiction under Penal Code section 1181, case 5 to order a new trial, as it was outside the scope of the motion for a new trial.
Defendant argues the People forfeited their right to argue any error with regard to the trial court's ruling on inadequate jury instructions, as the People did not address that issue in their opening brief to this court. While defendant correctly states the general rule that an argument not asserted has been forfeited, this court may address such arguments where necessary. ( People v. Norwood (1972) 26 Cal.App.3d 148, 152 [ 103 Cal.Rptr. 7] ["[a]n appellate court may note errors not raised by the parties if justice requires it"]; Maguire v. Cunningham (1923) 64 Cal.App. 536, 540 [222 P. 838] [the court raised the issue of jurisdiction despite a lack of briefing on appeal].) Here, we will address whether the trial court could grant a new trial based on grounds not raised in the new trial motion, as it is a jurisdictional question of pure law on facts that are uncontested by the parties.
A motion for new trial may be granted only upon a ground raised in the motion. ( People v. Johnston (1940) 37 Cal.App.2d 606, 609 [ 100 P.2d 307]; People v. Skoff (1933) 131 Cal.App. 235, 240 [ 21 P.2d 118].) "[A] defendant waives his right to a new trial upon all grounds included within the provisions of [Penal Code section 1181] unless he specifies the grounds upon which he relies in his application therefor." ( Skoff, at p. 240.) Allowing a court to grant a new trial on a ground not raised by the moving party would be the equivalent of allowing the court to grant a new trial on its own motion, an act which the court is without authority to do. (See People v. Rothrock (1936) 8 Cal.2d 21, 23-24 [ 63 P.2d 807]; People v. Sanders (1990) 221 Cal.App.3d 350, 363 [ 271 Cal.Rptr. 534] [court is without authority to grant new trial where defendant failed to file statutory motion for new trial].)
Here, the court went beyond the scope of defendant's motion by granting a new trial under Penal Code section 1181, cases 5 and 6 when defendant raised only case 6 in his motion for a new trial. The trial court had no jurisdiction to order a new trial under Penal Code section 1181, case 5 and therefore exceeded its authority. ( People v. Skoff, supra, 131 Cal.App. at p. 240.)
We do not rule today on whether the issues raised both in defendant's brief and by the trial court itself regarding the jury instructions have merit. Instead, those issues must be addressed (if at all) in a separate appeal from the judgment challenging the instructions themselves rather than this appeal from the order granting a new trial.
II The Trial Court Abused Its Discretion in Finding the Evidence Insufficient to Convict Defendants
See footnote, ante, page 504.
The People argue that the trial court abused its discretion in granting a new trial based on insufficient evidence because the trial court "viewed the issue as whether respondent `lost the protection of his [medical marijuana] card.'" Instead, the People argue, "the determinative question for the jury was not whether [defendant's medical marijuana card] completely lost its protective effect, but rather whether [defendant]'s actions went beyond the protection provided." The People then point to evidence from the trial to show that the jury could have reasonably concluded defendant cultivated marijuana for reasons other than his own personal medical purposes, which they argue could allow the jury to find defendant guilty despite his medical marijuana card. An order from the trial court in a criminal case granting a new trial is accorded great deference; an appellate court will not disturb the order unless it clearly appears the trial judge abused his discretion. ( People v. Robarge (1953) 41 Cal.2d 628, 633; People v. Sarazzawski (1945) 27 Cal.2d 7, 16.) Here, defendant's motion for a new trial hinged on the theory that his cultivation was lawful because he possessed a medical marijuana card and the amount of marijuana kept in his home was within the limits proscribed by the card. The trial court ruled there was insufficient evidence based on a similar theory, "that if you do something that abuses your [medical marijuana card] and is also [a] violation of the law, you get prosecuted and punished for the violation of the law but you don't lose the protection." Based on that conclusion, the trial court found that "the only way the jury could have gotten to where it got was by the argument that the defendant lost the protection of [the card]. . . . So there's no factual basis on which [the jury] could have found the defendant guilty of cultivation unless they found that he did not have protection because of what he had done by giving or selling, however you want to characterize it, to [Perry E.]." Defendant and the trial court are mistaken about the effect of having a physician's recommendation to use medical marijuana. Health and Safety Code section 11362.5, subdivision (d) provides that "[Health and Safety Code] Section 11357, relating to the possession of marijuana, and [Health and Safety Code] 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." (Italics added.) Marijuana cultivation with a valid medical marijuana card, in the amounts allowed by statute, for personal medical use is legal under Health and Safety Code section 11362.5. It is "no more criminal . . . than the possession and acquisition of any prescription drug with a physician's prescription." ( People v. Mower (2002) 28 Cal.4th 457, 482.) However, the protection granted against prosecution for cultivation requires that the cultivation be "for the personal medical purposes of the patient." (Health Saf. Code, § 11362.5, subd. (d).) In allocating the burden of proof to defendants who raise a medical marijuana defense, our Supreme Court has stated the defendant must show "that he or she was a `patient' or `primary caregiver,' that he or she `possesse[d]' or `cultivate[d]' the `marijuana' in question `for the personal medical purposes of [a] patient,' and that he or she did so on the `recommendation or approval of a physician.'" ( People v. Mower, supra, 28 Cal.4th at p. 477, italics added.) Each element must be proven to provide a medical marijuana defense. This court has been even more explicit in explaining that the cultivation must be for personal use, holding "[q]uantity is relevant to a [medical marijuana] defense because the law authorizes the cultivation and possession of marijuana only `for the personal medical purposes of the patient.' [Citation.] If a person cultivates or possesses marijuana for any other purpose, the defense is not available." ( People v. Jones (2003) 112 Cal.App.4th 341, 346, fn. 2.) Defendant's motion for a new trial because of insufficient evidence was based on the assertion that because "[a]ll the criteria for lawful cultivation were established by, essentially, uncontroversial evidence . . . [¶] . . . [i]f [the jury] had followed the law and the instructions no rational jury could have convicted the defendant of [cultivation of marijuana.]" This assertion is incorrect. Here, the jury could have reasonably inferred the defendant's cultivation was, at least in part, for purposes other than defendant's medical use. The evidence showed that defendant had previously pled guilty to growing marijuana, that he had previously given marijuana to Perry E., and that he had purchased marijuana from defendant on previous occasions. Furthermore, the jury found defendant guilty of illegally furnishing marijuana to Perry E. Taken together, these facts could allow a reasonable jury to find that defendant did not cultivate the marijuana solely for medical reasons, but also for the purpose of furnishing it to others. Because there was sufficient evidence to support defendant's cultivation conviction, the trial court abused its discretion in granting a new trial. Therefore, the order granting a new trial is reversed.
DISPOSITION
The order granting a new trial is reversed and the case is remanded to the trial court for sentencing.Morrison, Acting P. J., and Butz, J., concurred.
Appellant's petition for review by the Supreme Court was denied August 27, 2008, S164301. Kennard, J., and Werdegar, J., were of the opinion that the petition should be granted.