Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. SC164212
Banke, J.
Joseph Bo Williams appeals from an order denying his motion for return of marijuana seized in searches of his car and residence. The trial court found Williams was not a “qualified user” of medical marijuana as defined in the Compassionate Use Act of 1996 (CUA) (Health & Saf. Code, § 11362.5) on the date of his arrest, and denied his motion. We affirm.
All further statutory references are to the Health and Safety Code unless otherwise indicated.
Background
On April 21, 2009, Gregory Hudson sold cocaine to an undercover police officer and was arrested. Hudson had arrived at the sale locale in a car driven by Williams. Williams was arrested for conspiracy to sell cocaine, and his car was searched. The search yielded approximately 6.0 grams of marijuana, a silver colored viper 250 digital scale with marijuana residue, a Cannabis Buyers club card in the name of Joseph Williams, a black backpack with approximately 1.1 grams of marijuana, and two glass mason jars, one of which contained four bags of marijuana (weighing approximately 27.8 grams, 27.6 grams, 27.8 grams, and 27.4 grams). A search of Williams’s house pursuant to a warrant yielded another mason jar with 18 grams of marijuana and a digital scale.
Williams admitted he did not have a valid medical marijuana card at the time of his arrest. On January 12, 2008, he had obtained a written marijuana recommendation for insomnia, stress, and anxiety from Dr. Hany Assad, M.D. Assad’s recommendation stated it would “expire” one year later, on January 12, 2009-three months before Williams’s arrest. On April 23, 2009, two days after his arrest, Assad provided Williams with a new marijuana recommendation for back pain and insomnia.
Also on April 23, 2009, Williams was charged with possession of marijuana for sale (§ 11359), possession of cocaine (§ 11350, subd. (a)), and possession of Ecstasy (§ 11377, subd. (a)). On December 28, 2009, Williams filed a motion to quash and traverse the search warrant and to suppress evidence. On January 15, 2010, he filed a motion for return of the marijuana.
On January 26, 2010, the hearing date for Williams’s motions, the prosecution moved to dismiss the case in the interests of justice. The trial court granted the motion. The prosecution refused, however, to return the marijuana. Accordingly, Williams’s motion for return of the marijuana was set for hearing, and heard on March 4, 2010. The trial court found Williams was not a “qualified user” as defined in the CUA (§ 11362.5) and denied his motion. Nevertheless, the court stayed destruction of the marijuana pending any appeal. Williams filed a timely notice of appeal on March 15, 2010.
By this time, Assad’s license to practice medicine had reportedly been revoked.
Discussion
Williams asserts he is entitled to return of the seized marijuana because he used marijuana for medicinal purposes and with the recommendation of a physician. The trial court rejected this assertion, explaining: “I find that in this case at the time of the arrest, the defendant was not a qualified user as those terms are used under the [CUA]... we all know that is the [section] 11362.5 provision of the Health and Safety Code. The simple fact is on April 21st, 2009, the day the contraband was seized in this matter, the defendant did not have the legal right to possess marijuana. His recommendation had expired by its own terms three months or so earlier on January 12th, 2009. The Windus case to me on the issue of when a medical marijuana recommendation expires is essentially dicta. The Windus case is about the amount of marijuana one can possess. It touches on the length of a valid recommendation, but in the Windus case, it is apparent that the [doctor]... there had suggested that the defendant annually see the doctor regarding subsequent medical marijuana use. In our case the recommendation actually expired. It was a one-year recommendation, and I think it’s only common sense to understand that given the nature of medical conditions and in particular the one involved in this case-I think that the original recommendation was for back and knee pain, insomnia, stress and anxiety...-it would be illogical to assume a recommendation to use marijuana should go on indefinitely. It expired by its own terms. On the date the defendant was arrested with the contraband, he was not covered by the medical marijuana recommendation. Two days later-two days after his arrest, he got another recommendation for different ailments or lesser ailments than before. It is not persuasive to me that two days after his arrest, the defendant secured another medical marijuana recommendation. That to me doesn’t connect the bridge and give him a defense or immunity or the legal right to possess marijuana in the interim when he had no recommendation. So it is this [c]ourt’s finding that on April 21st, 2009, the defendant had no written or oral recommendation, nor did he have the approval, as I understand those terms to mean in [section] 11362.5[, subdivision] (d).”
People v. Windus (2008) 165 Cal.App.4th 634 (Windus).
We agree with the trial court on all points. The CUA (§ 11362.5) provides a limited immunity from prosecution for the cultivation or possession of marijuana by a patient or a patient’s caregiver “who possess or cultivates [the] marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.” (§ 11362.5, subd. (d); see City of Garden Grove v. Superior Court (2007) 157 Cal.App.4th355, 372-373 (City of Garden Grove).) Under guidelines adopted by the Attorney General to facilitate the implementation of the subsequently enacted Medical Marijuana Program, if a defendant establishes a medical marijuana defense or the case is dismissed, the defendant can move for the return of the seized marijuana. (Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use, Cal.Atty.Gen., § IIIB7 (Aug. 2008); see also City of Garden Grove, supra, at pp. 386-389.) Where a medical marijuana defense is not established, however, the seized marijuana need not be returned, even if the case is dismissed. (City of Garden Grove, at pp. 387-388; Chavez v. Superior Court (2004) 123 Cal.App.4th 104, 111 (Chavez).)
Williams did not demonstrate that at the time of his arrest he had a medical marijuana defense. (See City of Garden Grove, supra, 157 Cal.App.4th at pp. 386-389 [defendant has burden of proving foundational elements of a medical marijuana defense].) He admittedly did not have a valid medical marijuana card at the time. And, as the trial court found, his marijuana recommendation from Assad had expired by its own terms. Williams’s position is essentially that having once obtained a medical marijuana recommendation, he remained covered by the protections of the statute for as long as he continued to use marijuana for medicinal purposes. In other words, Williams insists we should ignore the explicit time limitation Assad placed on his recommendation. Williams cites no authority suggesting this is proper, and we reject such a notion.
Williams relies principally on Windus, supra, 165 Cal.App.4th 634. In that case, the Court of Appeal held the defendant was entitled to present a CUA defense to a possession for sale charge, even though he had not consulted with his physician annually, as the physician had recommended. At an Evidence Code section 402 hearing on whether the defendant could proceed with a medical marijuana defense, his doctor testified he had provided a written recommendation for marijuana use for pain, he had not recommended a particular amount, and if the defendant was eating marijuana, rather than smoking it, the quantity in his possession was not unreasonable. (Windus, at pp. 637-638.) His doctor also testified he had recommended that the defendant return annually for evaluation. (Id. at p. 638.) The trial court precluded the defendant from proceeding with a compassionate use defense, concluding the amount of marijuana he possessed exceeded that which reasonably could have been for medicinal purposes. (Id. at p. 639.) The Court of Appeal reversed, holding the portion of the Medical Marijuana Program that limited the amount of marijuana that could be possessed was an impermissible modification of the CUA. (Id. at p. 640.) The appellate court also concluded the defendant was a “qualified user” because his doctor’s recommendation for annual evaluations was only a “suggestion” and there was “no evidence” the defendant’s failure to obtain such evaluations “invalidated” the doctor’s medical marijuana recommendation. (Id. at p. 641.) Here, in contrast, Williams’s doctor did not testify, and the recommendation by Williams’s doctor expired by its own terms one year after it was issued and well before Williams’s arrest. That Williams’s doctor provided a new recommendation after the arrest does not retroactively make Williams’s possession lawful. (People v. Rigo (1999) 69 Cal.App.4th 409, 412-415 (Rigo).)
Williams complains refusing to return the seized marijuana is contrary to the purposes of the CUA and the Medical Marijuana Program. We disagree. These statutes are detailed, and the trial court correctly applied them according to their terms. Any further expansion of their provisions must be provided by the Legislature or the electorate through the initiative process. (See Chavez, supra, 123 Cal.App.4th at p. 111 [courts “ ‘have no power to rewrite the statute to make it conform to a presumed intention that is not expressed’ ”], quoting County of Santa Clara v. Perry (1998) 18 Cal.4th 435, 446]; Rigo, supra, 69 Cal.App.4th at p. 415 [declining “invitation to extend the statutory language”].)
Disposition
The order denying Williams’s motion for return of the seized marijuana is affirmed, and the stay on the destruction of the marijuana is lifted.
We concur: Margulies, Acting P. J., Dondero, J.