Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF072277
HULL, J.A jury convicted defendant Kenneth Dale Murphy of transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)). The jury decided he was not guilty of the crime of sale of an assault weapon (Pen. Code, § 12280, subd. (a)(1)) and also found that he was not armed with an assault weapon in the commission of the transportation offense (Pen. Code, § 12022, subd. (a)(2)).
Granted probation, defendant appeals. He contends the trial court prejudicially erred in refusing to take judicial notice and admit evidence of Mendocino County’s Ordinance concerning marijuana possession. Defendant also contends the trial court erroneously refused to instruct the jury on entrapment with respect to the transportation offense. Defendant challenges his sentence, contending that he was eligible for Proposition 36 probation. He further argues he was entitled to a jury determination as to whether the marijuana he transported was for personal use. We affirm the judgment.
Facts and Proceedings
On April 25, 2007, Ted Potter, a confidential informant for the Yolo County Narcotics Enforcement Team (YONET) called YONET Task Force Agent Lewis LeFlore and said that he was with someone who wanted to sell an Uzi-type assault weapon. Potter said he was calling from Ukiah. Agent LeFlore asked Potter to drive to Cache Creek Casino in Yolo County and meet with undercover agent Jonathan Updegraff who would “buy” the assault weapon.
Potter rode as a passenger with defendant who drove his (defendant’s) pickup truck to meet with Updegraff at Cache Creek Casino. When they arrived, Potter introduced defendant to Agent Updegraff who asked defendant if he had the “toy,” meaning the assault weapon. Defendant said he did, removed a backpack from the cargo box in his truck and handed the backpack to the officer.
The officer found an assault weapon, specifically, a Norinco model 320, a nine millimeter, semiautomatic firearm, in the backpack. The firearm was considered an assault weapon because it had a detachable magazine and a shroud and was worth between $400 and $500. The weapon was unloaded and there were no bullets or a magazine. Defendant confirmed that the weapon was fully automatic and that the price was $500. When the officer asked if defendant had any more, defendant responded that “the other guy” had maybe one more weapon.
At that point, Updegraff said that he had to get the money and started walking toward his car, which was the signal to other officers to arrest defendant. Defendant followed the officer to his car and put the backpack with the firearm on the passenger seat. Defendant was then placed under arrest.
A search of defendant’s truck revealed more than two pounds of marijuana. Two zip lock bags of marijuana, one weighing 39 grams and the other weighing 28.8 grams, were found in the glove box. Two more bags of marijuana, one a vacuum sealed bag weighing 149.1 grams and the other a large black plastic garbage bag weighing 826.1 grams, were found in the bed of defendant’s truck.
Having waived his rights (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694]), defendant claimed he was selling the gun as a favor for someone else whom he did not identify. He admitted that the marijuana belonged to him and that he had cultivated it, claiming he had a medical marijuana card.
Defendant testified at trial. He said he was 35 years old and had lived in Mendocino County for about 24 years. Regarding the marijuana found in his truck, defendant explained that the marijuana belonged to him and that he used it for medicinal reasons. Defendant stated that he suffered from chronic back pain from an old injury and had an eating disorder and that a physician recommended that he use marijuana. He smoked two to four marijuana cigarettes every night after work. A cigarette weighed about 1.5 grams.
Defendant had harvested 25 marijuana plants in October 2006 and was arrested six months later. He had about one-half the harvest in his truck having smoked the other half. He used the marijuana from the two smaller bags found in the glove box to smoke from on a daily basis and the remainder was kept in the vacuum-sealed bag and the large plastic bag. He did not share his marijuana. Defendant said he had the marijuana in his truck because he was in the process of moving from his girlfriend’s property in Potter Valley to his ranch in Ukiah. He normally kept the marijuana in his motor home on her property.
Defendant admitted that he was convicted in 1991 of exhibiting a firearm and also had a conviction for possession of methamphetamine.
Discussion
I
Relevance of the Mendocino County Ordinance
The Compassionate Use Act of 1996 (CUA)(Prop. 215, § 1, as approved by the electors, Gen. Elec. (Nov. 5, 1996)), codified in Health and Safety Code section 11362.5, establishes a defense for possession and cultivation of marijuana which is approved or recommended by a physician for the patient’s medical needs. (People v. Wright (2006) 40 Cal.4th 81, 90 (Wright).) Health and Safety Code section 11362.5, subdivision (d) of the CUA provides: “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 for approval of a physician.” A defendant may raise his or her status as a qualified patient as a defense at trial. (People v. Mower (2002) 28 Cal.4th 457, 464, 474.)
In 2003, the Legislature enacted the Medical Marijuana Program (MMP)(Health and Saf. Code, § 11362.7 et seq.) which provides in part that “[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.” (Health and Saf. Code, § 11362.77, subd. (a).) However, “[c]ounties 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).” (Health and Saf. Code, § 11362.77, subd. (c).)
Prior to the enactment of the MMP, the County of Mendocino, through its Board of Supervisors, had enacted Chapter 9.36 of the Mendocino County Code which is entitled “Cannabis Personal Use Ordinance for Mendocino County.” Section 9.36.060 of that chapter provides that the “Board of Supervisors shall use its funding authority to ensure that the District Attorney shall not prosecute any violations of [the California Health and Safety Code sections relating to the possession, transportation and cultivation of marijuana] nor seize any property in any single case involving twenty-five (25) or fewer adult flowering female marijuana plants or the equivalent in dried marijuana.” (Mendocino County Code, ch. 9.36, § 9.36.060.) Section 9.36.050 of the code is a similar provision intended to ensure that the Sheriff’s Office would make no arrests nor issue any citations based upon those same amounts of marijuana. (Mendocino County Code, ch. 9.36, § 9.36.050.)
Although the CUA does not expressly establish a defense to the crime of transportation of marijuana (Health & Saf. Code, § 11360; Wright, supra, 40 Cal.4th at pp. 90-92), the MMP does and extends the CUA medicinal marijuana defense to transportation of marijuana under certain circumstances. Specifically, section 11362.765 of the Health and Safety Code provides that individuals who transport marijuana are not subject to criminal liability if the person transports the marijuana for that individual’s own personal medical use. (Health and Saf. Code, § 11362.765.)
Against this legislative backdrop, at trial, defendant asked the court to take judicial notice of the Mendocino County Ordinance set forth above which, he argued, established that 25 marijuana plants or their dried equivalent could be cultivated and possessed for personal use in Mendocino County. Defendant argued he was within the legal limit in Mendocino County and he wanted to use the ordinance to support his claim that the amount that he possessed and transported in Yolo County was for his personal medical use and to support an entrapment defense on the transportation charge.
The People objected and argued that the ordinance did no more than establish that the Board of Supervisors of Mendocino County did not want the Sheriff’s Department of that county to arrest, or the district attorney’s office to prosecute, individuals in possession of 25 or fewer marijuana plants or the dried equivalent thereof and that it would use its budgetary authority to achieve that result. According to the People, the ordinance did not make the possession or transportation of the specified amount of marijuana legal.
The trial judge refused to take judicial notice of the ordinance and concluded that the ordinance was irrelevant and its admission would confuse the jury. The trial court rested its ruling on the fact that a mistake of law was not a defense to a charge of transportation of marijuana, that entrapment did not apply to the transportation offense, and that entrapment to the transportation offense was logically inconsistent with the defense theory that it was not illegal in Mendocino County to transport the amount of marijuana found in defendant’s truck. The court ruled defendant could testify he grew the marijuana for personal use but could not testify that he relied on the ordinance in growing or transporting a specific amount.
Defendant contends that the trial court erred because the ordinance was relevant to his defense under the CUA, Health and Safety Code section 11362.5. He argues the MMP, specifically Health and Safety Code section 11362.77, subdivision (c), authorizes cities and counties to enact ordinances which increase the legal limit of marijuana a patient can possess (and, presumably, transport) for medical purposes, and claims Mendocino County enacted its ordinance pursuant to the statute. Had the trial court taken judicial notice of the ordinance, he asserts, he intended to testify that he relied on the ordinance in determining the amount of marijuana he could possess. Defendant further argues that the trial court’s ruling violated his federal due process right to present a defense. We conclude the trial court ruled correctly and that there was no violation of defendant’s right to due process of law.
Only relevant evidence is admissible. (Evid. Code, § 350.) “‘Relevant evidence’ means evidence, . . ., having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.)
First, as can be seen and as pointed out by the People at trial, the Mendocino County Ordinance does not legalize the possession, cultivation, or transportation of marijuana of less than 25 marijuana plants or their dried equivalent in Mendocino County. Further, it does not purport to establish that amount of marijuana which may be cultivated, possessed, or transported for personal medical use. The ordinance is no more than an expression of the Board of Supervisors’ wishes and an effort to discourage law enforcement authorities from undertaking marijuana prosecutions for amounts less than that set forth in the ordinance by threatening those authorities’ funding. Whatever may be the value and effect of the ordinance, it does not “legalize” the cultivation, transportation, or possession of the amounts mentioned in the ordinance in Mendocino County.
Defendant claims however that the ordinance led him to believe he could transport and possess the marijuana found in his truck for his personal medical use. But, as the trial court correctly pointed out, his reliance on the ordinance was at most a mistake of law which was not a defense to the crime. (Cf. People v. Young (2001) 92 Cal.App.4th 229 [belief that the CUA provided a defense to a charge of transportation of marijuana was a misapprehension of law.)
Indeed, defendant made two mistakes of law: first, that the ordinance legalized his transportation of the marijuana; and, second, that the Mendocino County Ordinance, whatever its effect in Mendocino County, had some effect in Yolo County. As noted, defendant wanted to use the Mendocino County Ordinance to argue that he thought he could transport the marijuana because it was for his personal medical use. But the ordinance was at most relevant only to defendant’s mistakes of law, mistakes that did not constitute a defense to the crime. The ordinance had no probative value as to any issue in the case and was, therefore, irrelevant.
Defendant argues that “[t]he issue of whether the ordinance was relevant and whether it should be judicially noted are distinct.” Not so. Since defendant failed to explain the relevance of the ordinance, the trial court properly refused to take judicial notice of it. “‘Because . . . no evidence is admissible except relevant evidence it is reasonable to hold that judicial notice, which is a substitute for formal proof of a matter by evidence, cannot be taken of any matter that is irrelevant . . . .’ [Citation.]” (People v. Rowland (1992) 4 Cal.4th 238, 268, fn. 6.)
We further conclude that defendant has failed to demonstrate that the trial court’s exclusion of the evidence violated his right to due process. (People v. Lewis & Oliver (2006) 39 Cal.4th 970, 990, fn. 5 [“rejection on the merits of a claim that the trial court erred . . . necessarily leads to rejection of the newly applied constitutional ‘gloss’ as well. No separate constitutional discussion is required”].)
II
Entrapment
Defendant requested that the trial court instruct the jury on entrapment with respect to the transportation of marijuana charge. The trial court refused to do so. Defendant claims the trial court erred in that he was “induced by a governmental agent to transport the marijuana to Yolo County” and that he “would have been found not guilty of transportation of marijuana had the jury known that defendant transported a quantity of marijuana that was within the safe harbor provisions of the Mendocino County Ordinance” which he relied upon. We find no error.
The test for entrapment in California is set out in People v. Barraza (1979) 23 Cal.3d 675, at pages 689 through 691, where the court said:
“[W]e hold that the proper test of entrapment in California is the following: was the conduct of the law enforcement agent likely to induce a normally law-abiding person to commit the offense? For the purposes of this test, we presume that such a person would normally resist the temptation to commit a crime presented by the simple opportunity to act unlawfully. Official conduct that does no more than offer that opportunity to the suspect--for example, a decoy program--is therefore permissible; but it is impermissible for the police or their agents to pressure the suspect by overbearing conduct such as badgering, cajoling, importuning, or other affirmative acts likely to induce a normally law-abiding person to commit the crime.
“Although the determination of what police conduct is impermissible must to some extent proceed on an ad hoc basis, guidance will generally be found in the application of one or both of two principles. First, if the actions of the law enforcement agent would generate in a normally law-abiding person a motive for the crime other than ordinary criminal intent, entrapment will be established. An example of such conduct would be an appeal by the police that would induce such a person to commit the act because of friendship or sympathy, instead of a desire for personal gain or other typical criminal purpose. Second, affirmative police conduct that would make commission of the crime unusually attractive to a normally law-abiding person will likewise constitute entrapment. Such conduct would include, for example, a guarantee that the act is not illegal or the offense will go undetected, an offer of exorbitant consideration, or any similar enticement.
“Finally, while the inquiry must focus primarily on the conduct of the law enforcement agent, that conduct is not to be viewed in a vacuum; it should also be judged by the effect it would have on a normally law-abiding person situated in the circumstances of the case at hand. Among the circumstances that may be relevant for this purpose, for example, are the transactions preceding the offense, the suspect’s response to the inducements of the officer, the gravity of the crime, and the difficulty of detecting instances of its commission. [Citation.] We reiterate, however, that under this test such matters as the character of the suspect, his predisposition to commit the offense, and his subjective intent are irrelevant." (Fns. omitted.)
“The trial court was required to instruct . . . on the defense of entrapment if, but only if, substantial evidence supported the defense. [Citations.]” (People v. Watson (2000) 22 Cal.4th 220, 222.)
Here, there was no evidence that the officers induced, pressured or otherwise took affirmative steps to get defendant to transport marijuana to and in Yolo County. There was no evidence that Potter or the officers even knew that defendant had marijuana in his truck before the search incident to his arrest for selling an assault weapon to the undercover officer, which was the crime law enforcement officers were giving the defendant the opportunity to commit. The trial court properly refused to instruct on entrapment with respect to the transportation offense.
III
Proposition 36 Probation
Defendant requested Proposition 36 probation, claiming that the marijuana he transported was for his personal use, again citing the Mendocino County Ordinance. The trial court refused Proposition 36 drug treatment probation but granted formal probation instead. Defendant contends the trial court erred in refusing Proposition 36 probation arguing that he presented sufficient evidence that the marijuana was for his personal use.
Proposition 36, the Substance Abuse and Crime Prevention Act of 2000, requires the trial court to grant probation with a drug treatment program condition to a defendant convicted of a “nonviolent drug possession offense” (Pen. Code, § 1210.1, subd. (a)) unless excluded (id., subd. (b)). A “‘nonviolent drug possession offense’” includes transportation of marijuana for personal use. (Id., § 1210, subd. (a).)
Here, the trial court found defendant ineligible for Proposition 36 probation because it found defendant’s transportation of more than two pounds of marijuana was not for personal use. In concluding the defendant was ineligible for Proposition 36 probation, the court stated: “The defendant has the burden of proving that he transported that marijuana for personal use. That’s not what the evidence showed. At best, giving [defendant’s] testimony more credence than, perhaps, I should, he testified that he was moving the marijuana from one location to another and in the process of that move he was convinced to come to Yolo County to deliver this firearm. There is nothing in the evidence that suggests that his transportation of the marijuana to Yolo County had anything to do with personal use. [¶] Even if one could come to that conclusion the evidence showed that there was marijuana in the glove compartment, perhaps that marijuana could be considered for personal use, but there was a substantial quantity of marijuana in a different kind of packaging material that was found in the back of the defendant’s pick-up truck. That evidence does not support any logical inference that marijuana in total was for personal use.”
Defendant has the burden of proving that his transportation of the marijuana for was for his personal use. (People v. Glasper (2003) 113 Cal.App.4th 1104, 1116 (Glasper); People v. Barasa (2002) 103 Cal.App.4th 287, 295-296 (Barasa).) The trial court’s finding that defendant was not eligible for Proposition 36 probation will not be disturbed on appeal where supported by substantial evidence. (People v. Dove (2004) 124 Cal.App.4th 1, 10-11 (Dove).)
On appeal, defendant argues that the quantity he transported was consistent with personal use as he had explained at trial and at sentencing. The trial court concluded that while defendant may have possessed the almost 70 grams in the glove box for personal use, he did not possess the two pounds in different packaging in the truck bed for personal use. Further, the court found that defendant had not shown that he had to transport the marijuana to Yolo County for his personal use. The trial court was within its authority to reject defendant’s self-serving claim that he had recently put the marijuana in the truck because he was in the process of moving. (Glasper, supra, 113 Cal.App.4th at p. 1113.) Defendant failed to meet his burden of establishing personal use. Substantial evidence supports the trial court’s finding that defendant was not eligible for Proposition 36 probation.
IV
Jury Trial
Defendant renews his claim in the trial court that he was entitled to a jury trial on the question whether the marijuana he transported was for personal use as that issue related to his request to be sentenced pursuant to Proposition 36. We disagree.
Other than a prior conviction, any fact that increases the punishment for a crime above the statutory maximum must be tried to a jury and proven beyond a reasonable doubt. The statutory maximum is the maximum sentence that may be imposed based solely on facts determined by a jury or admitted by the defendant. (Cunningham v. California (2007) 549 U.S. 270, 274 [166 L.Ed.2d 856, 864] (Cunningham); United States v. Booker (2005) 543 U.S. 220, 232 [160 L.Ed.2d 621, 642] (Booker); Blakely v. Washington (2004) 542 U.S. 296, 301 [159 L.Ed.2d 403, 412] (Blakely); Apprendi v. New Jersey (2000) 530 U.S. 466, 476 [147 L.Ed.2d 435, 446] (Apprendi).)
Cunningham held that California’s determinate sentencing law “violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments” (Cunningham, supra, 549 U.S. at p. 274 [166 L.Ed.2d at p. 864]) insofar as a judge imposes the upper term “based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant” (id. at p. 275 [166 L.Ed.2d at p. 864]) finding that “the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum.” (Id. at p. 288 [166 L.Ed.2d at p. 873].)
Proposition 36 is a sentence reducing scheme and it does not set the statutory maximum for the offense. (In re Varnell (2003) 30 Cal.4th 1132, 1142 (Varnell) [“[N]othing in section 1210.1 [Proposition 36] could have created an enhancement to petitioner’s sentence since, when it applies, section 1210.1 reduces the potential punishment”]; Dove, supra, 124 Cal.App.4th at p. 11 [“[I]n enacting Proposition 36, the electorate understood incarceration to be the preexisting standard penalty; it intended probation and treatment to reduce the penalty that would otherwise apply” and “neither Apprendi nor Blakely prohibited the trial court from deciding, based on the preponderance of the evidence, whether defendant’s possession or transportation was for personal use for purposes of Proposition 36”]; Glasper, supra, 113 Cal.App.4th at p. 1115 [Proposition 36 did not create a new crime of transportation for personal use nor did it create a sentencing enhancement; Apprendi does not apply because Proposition 36 lightens the punishment for the crime]; Barasa, supra, 103 Cal.App.4th at p. 294 [Proposition 36 “effects a sentencing reduction, rather than an increase in the ‘prescribed statutory maximum’ sentence”].)
Defendant contends that Barasa, Glasper, and Dove were all incorrectly decided, noting that all were decided prior to Booker which defendant claims clarified the holding in Blakely. He claims “[i]t is the mandatory nature of a grant of probation under Proposition 36 that makes this case fall within the holding of United States v. Booker.” Defendant argues “[i]t is only when the additional factual finding is made [that] the defendant possessed the narcotics for some purpose other than personal use does the defendant become eligible for a state prison sentence.”
Defendant is mistaken in his belief that section 1210.1 “altered the statutory maximum sentence” for those convicted of possession or transportation. Defendant’s offense of transportation is subject to a state prison sentence unless the court is lenient and grants probation or unless the defendant meets his burden of establishing that the transportation was for personal use and the court then grants Proposition 36 probation.
According to Varnell, supra, 30 Cal.4th at page 1136, Proposition 36 “acts as an exception to the punishment specified” for an offense. We are bound by Varnell. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Thus, the trial court properly determined the fact that defendant’s transportation was not for personal use.
Disposition
The judgment is affirmed.
We concur: SIMS, Acting P. J., DAVIS, J.
Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.