Opinion
F070326
05-15-2017
THE PEOPLE, Plaintiff and Respondent, v. STEVEN LEE GUIRE, Defendant and Appellant.
Gordon B. Scott, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez, and Charity S.Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VCF274707A)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge. Gordon B. Scott, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez, and Charity S.Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant Steven Lee Guire was charged with possession of marijuana for sale (Health & Saf. Code, § 11359 [count 1]); cultivation of marijuana (§ 11358 [count 2]); possession of concentrated cannabis (§ 11357, subd. (a) [count 3]); and unlawful sale or transportation of marijuana (§ 11360, subd. (a) [count 4]). At trial, he raised a medical marijuana defense. The jury found defendant guilty on counts 1 and 3, found him not guilty on count 4, and could not reach a verdict on count 2. The trial court imposed and then suspended execution of a three-year prison sentence. Defendant was placed on probation on the condition he serve 365 days in county jail.
Unless otherwise indicated, subsequent statutory citations refer to the Health and Safety Code.
On appeal, defendant contends (1) the trial court improperly admitted and improperly excluded certain evidence; (2) the court did not provide appropriate jury instructions; and (3) the cumulative effect of the abovementioned errors was highly prejudicial. For the reasons set forth below, we find no prejudicial error and affirm the judgment.
STATEMENT OF FACTS
I. Prosecution's case-in-chief.
On October 19, 2012, the Tulare County Sheriff's Department executed a search warrant at defendant's residence north of Visalia. Outside the house, within an approximately 1,500-square-yard enclosure, they found 83 "fully budded" marijuana plants, 20 to 30 holes "with either stalks or upward, disturbed soil like plants had been uprooted," and defendant and Gabe Macias wrapping a marijuana plant. Posted on the enclosure's fence in plastic sleeves were two valid medical marijuana recommendations, one for defendant and the other for Bryan Sweeney. Each recommendation authorized 90 marijuana plants.
Officers found duplicates of these recommendations as well as expired recommendations for defendant and Bryon McClain, respectively, inside the house.
In the garage, officers came across moist partially processed marijuana hanging on racks and lines of twine to dry. Twenty-four plastic tubs and a large tarp on the floor held dry partially processed marijuana. Marijuana shake filled 32 "grocery store" paper bags and 11 "[t]rash bag style" plastic bags. Two glass pans of concentrated cannabis were discovered inside a chest freezer. Items used to grow marijuana indoors—i.e., grow lights, ballasts, air filters, fans, and trays—and to manufacture concentrated cannabis—i.e., a THC extraction machine and filter bags—were also identified.
Partially processed marijuana refers to "the state of the marijuana branch after it's cut from the plant" and "before the final state where only the bud [i]s left."
Marijuana shake is the "leaf and stem material" "that is cut off the marijuana branches during the processing of the plant."
THC, or tetrahydrocannabinol, is the psychoactive ingredient in marijuana. (People v. Bergen (2008) 166 Cal.App.4th 161, 168.)
Inside the house, officers encountered Sweeney, Yvette Borges, and Roseanna Smith in the dining room and Cynthia McClain in a bedroom. Cynthia's purse contained a small amount of fully processed marijuana in a plastic bag.
To avoid confusion, we refer to Bryon McClain by his surname McClain and Cynthia McClain by her given name Cynthia.
Fully processed marijuana refers to "the dried bud" "after all the leaves and stem material ha[ve] been trimmed away."
Three surveillance cameras were pointed toward the center of the dining room, where a large pile of partially processed marijuana sat on two adjacent tables. Surrounding the tables were five chairs representing five processing stations. Each station had trimming scissors, a bag to deposit marijuana shake, and a bag to deposit fully processed marijuana. One bag of fully processed marijuana was marked with Sweeney's name. A second bag of fully processed marijuana was marked with Cynthia's name. In addition, there were two large bowl trimmers on a nearby shelf.
Officers also found the following items inside the house: two glass pans of concentrated cannabis, a time clock, and time cards for "Gabe," "Rose," "Bryan . . . S," and "Cynthia," inter alios, in the kitchen; "turkey bags" typically used to package marijuana for commercial distribution in a closet; jars of fully processed marijuana, a safe containing cash in the amount of $2,538, and a paper bag containing cash in the amount of $714 in the master bedroom; and 15 marijuana plants lying underneath a grow light in another bedroom. They did not see "[a]ny forms that designated . . . defendant as a caregiver for anybody else" and "found no paperwork indicating a collective, an association, a group, a membership of any kind."
Altogether, officers recovered 1.63 pounds of fully processed marijuana; 69.76 pounds of moist partially processed marijuana; 174.74 pounds of dry partially processed marijuana; 186.83 pounds of marijuana shake; and 1.67 pounds of concentrated cannabis. According to a "weight analysis" conducted by Detective Brandon Vancuren, 89.95 percent of the dry partially processed marijuana and half of that percent of the moist partially processed marijuana consisted of "usable bud," a total of 188 pounds.
At trial, Vancuren explained how law enforcement generally determines the percentage of bud in dry partially processed marijuana:
"We will take random branches, typically three random branches from what we have collected, and we will weigh those branches as they are, and then we will trim as much leaf and stem from the branch only leaving . . . the bud. [¶] Then . . . we'll weigh the bud and then calculate the percentage [of] bud to the original branch . . . to try to figure out exactly how much the percentage is of the bud to the branch. [¶] . . . [¶] . . . [W]e'll add the three weights up and then divide it by three for an average for those three branches."Vancuren then explained how he calculated the percentage of bud in defendant's moist partially processed marijuana:
"What I did in this case, I used the 89.95 percent, but I subtracted 50 percent water weight. [¶] . . . [¶] . . . I know that a plant when it's growing can contain 75 to 90 percent water weight in the ground, and then once its cut and started to hang dry, it starts evaporating the moisture. [¶] . . . [F]rom the day of that search warrant, I believe that the plants could have been hanging for three to four days possibly, so a rough estimate was 75 to 50 percent moisture rate at that time."
Borges testified she and defendant have been close friends for almost 15 years. In October 2012, he paid her $10 an hour to trim marijuana. At the time, Borges did not have a valid medical marijuana recommendation but informed defendant she "was in the process of getting [her] card." On the day of the search, she was trimming marijuana. Borges was arrested and subsequently "entered a plea" to cultivation of marijuana. She believed "everything [she] w[as] doing was a legal, medical operation" and the marijuana "[wa]s being donated to the medical marijuana dispensaries and to patients."
Smith testified she and defendant have been close friends for many years. In October 2012, he paid her to trim marijuana. At the time, Smith did not have a valid medical marijuana recommendation but informed defendant she possessed one. On the day of the search, she was trimming marijuana. Smith was arrested and subsequently "pled out" to cultivation of marijuana. She believed "all the marijuana that [she] w[as] working on was for medical purposes."
Cynthia testified defendant is the father of her grandson. In October 2012, he paid her $10 an hour to clean his house and, on one occasion, trim marijuana. At the time, Cynthia did not have a valid medical marijuana recommendation. On the day of the search, she was cleaning the house. Cynthia asserted she had merely trimmed the marijuana that was in the paper bag bearing her name and that marijuana did not belong to her. She admitted the marijuana in her purse was hers but denied receiving any marijuana from defendant either "for free" or "in exchange for [he]r work or services." Cynthia was arrested and subsequently pled "no contest" to possession of marijuana for sale to avoid a lengthy prison sentence. She believed "all the marijuana [cultivated on defendant's property] was for medical purposes."
Detective Bobby Rader, who participated in the search, testified he has been involved in over a thousand marijuana-related investigations and received regular training on trends in marijuana cultivation, distribution, and sales as well as marijuana law. Moreover, as a member of the Sheriff's Tactical Enforcement Personnel, a narcotics task force, he interacts with marijuana users, growers, and sellers on a daily basis. In determining whether a marijuana cultivation and processing operation is either "a legitimate medical marijuana operation" or "an operation that[ is] intended for illegal sales or distribution," Rader assesses various factors, including the number of marijuana plants, valid medical marijuana recommendations, and people involved in the operation and the presence of specialized equipment, packaging materials, other drugs, illegal weapons, large sums of money, and/or pay/owe sheets. When asked by the prosecutor Sean Sangree whether "the fact that somebody has a marijuana recommendation . . . always mean[s] that they are only growing for their own personal use," Rader replied, "Absolutely not." He explained:
"I have investigated large numbers of cases where people are given recommendations . . . for the sole purpose of being legal to be around it or to handle it. [¶] I've seen where people have paid for recommendations and given it to somebody so that they can be legal and have that there. [¶] I have seen people take patients to the doctor and get them their recommendations. [¶] I've seen people get sent to the doctor and have their recommendations made for them. [¶] I've seen recommendations made . . . for people who simply sent a text message. [¶] Just because somebody possesses a recommendation does not blanket mean that what they're doing is legal."
In response to a hypothetical question posed by Sangree, Rader opined an individual possessed marijuana for sale if law enforcement searched his residential property and found 83 marijuana plants outdoors; 15 marijuana plants indoors; 1.63 pounds of fully processed marijuana; 244 pounds of partially processed marijuana estimated to yield 188 pounds of usable bud; almost 187 pounds of marijuana shake; 1.67 pounds of concentrated cannabis; equipment used to grow marijuana indoors and manufacture concentrated cannabis; multiple processing stations; multiple persons paid to trim marijuana; packaging materials; over $3,000 in cash; only two valid recommendations; and no documentation of a collective or cooperative. When asked whether his opinion would change "if six months after the search . . . [defendant] provided five or six or seven additional recommendations that were never found at the scene," Rader responded, "No, I don't think so. That's too much time. That's time for somebody to come up with a story, and that's time for somebody to produce documents."
Deputy Sheriff Shawn Hermosillo testified he was dispatched to defendant's prior residence in Visalia on June 30, 2006, to investigate a reported attempted robbery. Hermosillo spotted a tub of marijuana seedlings in the living room; 36 marijuana plants, grow lights, ventilation equipment, and surveillance monitors in a bedroom; and surveillance cameras throughout the premises. Defendant presented what appeared to be a valid medical marijuana recommendation and stated he and two roommates were authorized to grow marijuana. Hermosillo did not arrest defendant but did not tell him he complied with the state marijuana laws.
II. Defense's case-in-chief.
Defendant testified he consulted different lawyers "regarding the legality of [marijuana patients] associations and the distribution of medicine" and conducted his own research "to stay up with any current laws, changes, [and] medical cases." "[T]hrough [his] current attorney," he set up an association in which members were required to have valid medical marijuana recommendations and sign paperwork acknowledging the rules and bylaws. A board composed of defendant, Macias, McClain, and Sweeney governed the association.
Defendant cultivated medical marijuana for himself and other association members, including Macias, McClain, Sweeney, Warren Clark, Justin Ellis, and his grandfather Arthur Fowler. He produced pills of concentrated cannabis specifically for Fowler, who could not smoke. Defendant registered with various dispensaries to supply any marijuana overages to their patients and receive reimbursements for the "costs . . . to produce that medication." He reiterated these expenses, which were documented in a "little yellow pad," were not based on "the street value or anything of that nature." Whenever "[defendant] was reimbursed everything that [he] put into producing medicine," he donated the marijuana to dispensaries and other nonprofit organizations.
At trial, defendant produced medical marijuana recommendations for himself, Macias, McClain, Sweeney, Clark, Ellis, and Fowler, which were admitted into evidence. Altogether, these recommendations authorized 500 to 600 marijuana plants.
Between 2004 and 2012, but not every year, defendant grew marijuana. He was not always successful due to "[d]isease, pests, [and] pH issues with the water." Defendant even "lost whole entire crops before." In particular, his 2011 crop was "a[n] absolute disaster" because "a large percentage was molded" and could not be considered "medical quality."
According to defendant, 40 percent of the marijuana seized from his garage on October 19, 2012, was moldy and unusable "[from] what [he] could tell visually from the outside." However, he "hadn't [gone] through and determined what was usable medicine and what needed to be disregarded." Defendant intended to utilize the marijuana shake as mulch or compost tea. At the time of the search, he believed Borges, Smith, and Cynthia possessed valid medical marijuana recommendations. Specifically, Borges and Smith said they had recommendations.
Regarding Hermosillo's visit in June 2006, defendant emphasized he was not arrested after he presented some medical marijuana recommendations. A month after Hermosillo's visit, another police officer was dispatched to defendant's prior residence to investigate a reported robbery. That officer came across 200 marijuana plants. Again, defendant was not arrested after he presented the recommendations. At some point thereafter, criminal charges were filed. Those charges were dismissed in 2009.
Jeffrey Lee Nunes, Jr., managed a marijuana patients association and dispensary in Tulare County until 2010. He employed defendant between 2005 and 2007.
III. Prosecution's rebuttal.
Vancuren participated in the October 19, 2012, search. He did not find "[any] records that may have established the existence of a collective or a cooperative" or "any membership agreements for a marijuana association." Vancuren did not observe any mold on the marijuana he examined.
Defendant's cell phone was confiscated during the search. A technician extracted an October 6, 2012, text conversation between defendant and Macias. The latter asked, "Quick question, can I get another halfer but pay it on my next check? [¶] . . . [¶] . . . What's the damage for a zipper of LA?" Defendant replied, "Ya . . . but all I have here is PC or out LA. [¶] . . . [¶] . . . 70 or 120 for a full." Macias responded, "Oh, baby, . . . full order, plz."
Vancuren specified "zipper" refers to an ounce of narcotics, "LA" refers to a strain of marijuana commonly known as "LA Confidential," "PC" refers to another strain of marijuana known as "Paul and Chuck," and "70 or 120 for a full" means $70 for half an ounce and $120 for a full ounce.
Rader testified the October 6, 2012, text conversation "bolster[ed] [his] opinion . . . that this [wa]s a case regarding sales of marijuana."
DISCUSSION
I. Overview of state marijuana laws.
"California's statutes specify that, except as authorized or provided by law, it is a crime to possess marijuana (§ 11357), to cultivate, harvest, dry, or process it (§ 11358), to possess it for sale (§ 11359), to transport, import, sell, administer, or furnish it (§ 11360), or to give it away (ibid.)." (People v. Dowl (2013) 57 Cal.4th 1079, 1085 (Dowl).)
"The elements of the crime of possession of marijuana are (1) actual or constructive possession, (2) knowledge of its presence, and (3) knowledge that the material is marijuana." (People v. Archuleta (1971) 16 Cal.App.3d 295, 298; accord, People v. Hutchinson (1969) 71 Cal.2d 342, 345.) "[T]he elements may be proven by circumstantial evidence and any reasonable inferences drawn therefrom." (People v. Archuleta, supra, at p. 298.)
" 'Unlawful possession of a controlled substance for sale requires proof the defendant possessed the contraband with the intent of selling it and with knowledge of both its presence and illegal character. [Citation.]' [Citations.] Intent to sell may be established by circumstantial evidence. [Citation.]" (People v. Harris (2000) 83 Cal.App.4th 371, 374; see People v. Montero (2007) 155 Cal.App.4th 1170, 1175 ["The crime of possession for sale contains the additional element of proof of a specific intent to sell the substance."].)
In 1996, voters passed Proposition 215, which added section 11362.5 to the Health and Safety Code. (People v. Mower (2002) 28 Cal.4th 457, 463; People v. London (2014) 228 Cal.App.4th 544, 551 (London).) Known as the Compassionate Use Act of 1996 (CUA), section 11362.5 provides in part:
"(b)(1) The people of the State of California hereby find and declare that the purposes of the [CUA] are as follows:
"(A) To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.
"(B) To ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction. [¶] . . . [¶]
"(d) 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 or approval of a physician.Thus, "the CUA created a limited defense" (Kirby v. County of Fresno (2015) 242 Cal.App.4th 940, 952), one which "applies solely to qualified patients and their primary caregivers who possess or cultivate marijuana for the patient's personal use" (London, supra, 228 Cal.App.4th at p. 551, italics omitted).
"(e) For the purposes of this section, 'primary caregiver' means the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, or safety of that person."
In 2003, the Legislature enacted the Medical Marijuana Program (MMP) (§ 11362.7 et seq.) to " '[c]larify the scope of the application of the [CUA] and facilitate the prompt identification of qualified patients and their designated primary caregivers in order to avoid unnecessary arrest and prosecution of these individuals and provide needed guidance to law enforcement officers.' " (People v. Kelly (2010) 47 Cal.4th 1008, 1014, italics omitted; see London, supra, 228 Cal.App.4th at p. 552 ["The MMP[] did not amend the CUA; it is a separate legislative scheme that implements the CUA."].)
Under the MMP, "those who provide documentation from an 'attending physician' that they have 'been diagnosed with [certain] serious medical condition[s] and that the medical use of marijuana is appropriate' (§ 11362.715, subd. (a)(2)) may obtain an 'identification card that identifies' them as 'a person authorized to engage in the medical use of marijuana' (§ 11362.71, subd. (d)(3))." (Dowl, supra, 57 Cal.4th at p. 1086.) "[A] person who (1) 'transports or processes marijuana for his or her own personal medical use' (§ 11362.765, subd. (b)(1)) and (2) either has an identification card or does not have one but is 'entitled to' the CUA's 'protections' (see § 11362.7, subd. (f) [defining 'qualified patient']), 'shall not be subject, on that sole basis, to criminal liability under [s]ection[s] 11357 [(possession of marijuana)], 11358 [(cultivation of marijuana)], 11359 [(possession for sale)], 11360 [(transportation)], 11366 [(maintaining a place for the sale, giving away, or use of marijuana)], 11366.5 [(making available premises for the manufacture, storage[,] or distribution of controlled substances)], or 11570 [(abatement of nuisance created by premises used for manufacture, storage[,] or distribution of controlled substance)].' (§ 11362.765, subd. (a).)" (Ibid.) This immunity extends to "[a] designated primary caregiver who transports, processes, administers, delivers, or gives away marijuana for medical purposes . . . to the qualified patient of the primary caregiver, or to the person with an identification card who has designated the individual as a primary caregiver" (§ 11362.765, subd. (b)(2)) as well as "qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate cannabis for medical purposes" (§ 11362.775, subd. (a); see People v. Urziceanu (2005) 132 Cal.App.4th 747, 786 ["[T]he [MMP] sets forth the . . . affirmative defense allowing collective cultivation of marijuana . . . ."]).
The MMP "allows qualified patients, valid identification cardholders, and their respective primary caregivers, if any, to form nonprofit groups, and through those groups, pay each other and receive compensation and reimbursement from each other in amounts necessary to cover the 'overhead costs and operating expenses' of cultivating and providing medical marijuana to the qualified patient and valid cardholder members of the group" (London, supra, 228 Cal.App.4th at p. 564), but it does not "authorize any individual or group to cultivate or distribute marijuana for profit" (§ 11362.765, subd. (a)).
II. Defendant's claims of evidentiary error.
a. Standard of review.
"[A]n appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence." (People v. Waidla (2000) 22 Cal.4th 690, 717.) "Under the abuse of discretion standard, 'a trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.' [Citation.]" (People v. Hovarter (2008) 44 Cal.4th 983, 1004; see People v. Kipp (1998) 18 Cal.4th 349, 371 ["A court abuses its discretion when its ruling 'falls outside the bounds of reason.' "].)
"We review the correctness of the trial court's ruling at the time it was made . . . and not by reference to evidence produced at a later date." (People v. Welch (1999) 20 Cal.4th 701, 739.)
b. The trial court did not abuse its discretion when it admitted the convictions of Borges, Smith, and Cynthia.
i. Background.
In a motion in limine, Sangree asked the trial court to admit the convictions of Borges, Smith, and Cynthia stemming from the instant case:
"Borges, . . . Smith, and Cynthia . . . are all codefendants in this case who have pled and been sentenced. They will be called to testify regarding their knowledge of this case. Their felony convictions . . . are admissible evidence relating to their credibility, because the fact of the convictions are proof that they did not receive any 'deal' or special consideration in exchange for their testimony against . . . defendant. Further, the convictions of co[]defendants are relevant to the criminal nature of any collective or association defense . . . defendant may assert."Defense counsel William Logan opposed the request and urged the court to exclude these convictions pursuant to Evidence Code section 352, suggesting they would be used improperly as substantive evidence to prove defendant's guilt. At a pretrial hearing, after listening to the parties' arguments, the court granted the motion:
"Well, I think it would be difficult for the jury to assess their credibility if they're part of this whole thing, and they're not even told about whether they were arrested, what happened to their charges. [¶] No, the jury's gonna get with the complete picture here as to what happened to them on their charges."
At trial, after close of evidence, the court instructed the jury:
"[CALCRIM No. 226 (Witnesses):] You alone must judge the credibility or, in other words, the believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. [¶] You must judge the testimony of each witness by the same standards[,] setting aside any prejudice or bias you may have. You may believe all, part[,] or none of any witness's testimony. Consider the testimony of each witness and decide how much of it you believe.At no point did Logan did request a limiting instruction.
"In evaluating [a] witness's testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. [¶] Factors you may consider [include]: [¶] . . . [¶] Has the witness been convicted of a felony? [¶] . . . [¶]
"[CALCRIM No. 303 (Limited Purpose Evidence in General):] During the trial, certain evidence was admitted for a limited purpose, and you may consider that evidence only for that purpose and no other.
"[CALCRIM No. 316 (Additional Instructions on Witness Credibility—Other Conduct):] If you find that a witness has been convicted of a felony, you may consider that fact in evaluating the credibility of that witness's testimony. The fact of a conviction does not necessarily destroy or impair a witness's credibility. It is up to you to decide the weight of that fact and whether that fact makes a witness less believable."
In his summation, Sangree did not mention the convictions of Borges, Smith, and Cynthia.
ii. Analysis.
"Any prior felony conviction of any person in any criminal proceeding . . . shall subsequently be used . . . for purposes of impeachment . . . in any criminal proceeding." (Cal. Const., art. I, § 28, subd. (f), par. (4).) However, "a conviction is inadmissible . . . if it does not necessarily involve moral turpitude." (People v. Collins (1986) 42 Cal.3d 378, 389.) Furthermore, "trial courts retain their discretion under Evidence Code section 352 to bar impeachment with such convictions when their probative value is substantially outweighed by their prejudicial effect." (People v. Clair (1992) 2 Cal.4th 629, 654.)
"The California Supreme Court has divided crimes of moral turpitude into two groups. [Citation.] The first group includes crimes in which dishonesty is an element (i.e., fraud, perjury, etc.). The second group includes crimes that indicate a ' "general readiness to do evil," ' from which a readiness to lie can be inferred. [Citation.]" (People v. Chavez (2000) 84 Cal.App.4th 25, 28.)
" '[T]he admissibility of any past misconduct for impeachment is limited at the outset by the relevance requirement of moral turpitude. Beyond this, the latitude [Evidence Code] section 352 allows for [admission or] exclusion of impeachment evidence in individual cases is broad.' [Citations.] When determining whether to admit a prior conviction for impeachment purposes, the court should consider, among other factors, whether it reflects on the witness's honesty or veracity, whether it is near or remote in time, whether it is for the same or similar conduct as the charged offense, and what effect its admission would have on the defendant's decision to testify." (People v. Clark (2011) 52 Cal.4th 856, 931.) "When the witness subject to impeachment is not the defendant, [prominent] factors . . . include whether the conviction (1) reflects on honesty and (2) is near in time." (People v. Clair, supra, 2 Cal.4th at p. 654.) "Because the court's discretion to admit or exclude impeachment evidence 'is as broad as necessary to deal with the great variety of factual situations in which the issue arises' [citation], a reviewing court ordinarily will uphold the trial court's exercise of discretion [citations]." (People v. Clark, supra, at p. 932.)
We conclude the court did not abuse its discretion when it admitted the convictions of Borges, Smith, and Cynthia. To begin with, the offenses underlying these convictions are all crimes of moral turpitude. (See People v. Gabriel (2012) 206 Cal.App.4th 450, 459 [cultivation of marijuana]; People v. Standard (1986) 181 Cal.App.3d 431, 435 [possession of marijuana for sale].) Next, the record demonstrates the court heard arguments from the parties on both probative value and prejudice and ultimately decided the former outweighed the latter. (See People v. Lucas (1995) 12 Cal.4th 415, 448-449 [" '[T]he trial [court] need not expressly weigh prejudice against probative value—or even expressly state that [it] has done so.' . . . [If] [t]he record demonstrates that the trial court 'understood and fulfilled its responsibilities under Evidence Code section 352[,] [n]othing more [i]s required.' "].)
We recognize "[t]he general rule . . . that evidence regarding the guilty plea or conviction of a coparticipant in a crime is not admissible to prove guilt of a defendant. [Citations.] The rationale for the rule is that a guilty plea or conviction of a participant is irrelevant [as] to whether another person was positively and correctly identified as a coparticipant, and merely invites the inference of guilt by association. [Citations.]" (People v. Neely (2009) 176 Cal.App.4th 787, 795.) Similarly, "[e]vidence of a codefendant's guilty plea[] which is more prejudicial than probative when offered to raise an inference of the defendant's guilt is per se more prejudicial than probative when offered simply to bolster the credibility of another witness." (People v. Cummings (1993) 4 Cal.4th 1233, 1322.) Here, though, there was no issue as to identification and the convictions did not bolster the credibility of another witness. (Cf. People v. Leonard (1983) 34 Cal.3d 183, 187-189.) Most notably, Sangree never referred to the convictions, let alone declare they were substantive evidence of defendant's guilt, in his summation. In light of defendant's medical marijuana defense and the record indicating he had a medical marijuana recommendation at the time of the search (whereas Borges, Smith, and Cynthia did not) (see at p. 24, post), we are confident the jurors differentiated defendant's circumstances from those of Borges, Smith, and Cynthia and did not consider the trio's convictions as evidence of defendant's own guilt.
Even if we assume, arguendo, the prosecutor urged admission of and/or the court admitted the convictions for an improper purpose, any error was harmless under the standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (See People v. McCurdy (2014) 59 Cal.4th 1063, 1103 [applying Watson standard to erroneous ruling under Evid. Code, § 352]; People v. Leonard, supra, 34 Cal.3d at p. 189 [applying Watson standard to erroneous admission of coarrestee's guilty plea].) Under this standard, the erroneous admission of the convictions would constitute reversible error "only when the court, 'after an examination of the entire cause, including the evidence,' is of the 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (Watson, supra, 46 Cal.2d at p. 836; accord, People v. Callahan (1999) 74 Cal.App.4th 356, 363.) As we later detail, no such probability exists in the present case. (See at pp. 24-25, post.)
Defendant asserts the court should have sanitized the convictions to prevent the jury from learning Borges, Smith, and Cynthia pled guilty or no contest to either cultivation of marijuana or possession of marijuana for sale in connection with this case. (See People v. Massey (1987) 192 Cal.App.3d 819, 825.) However, he failed to request sanitization at trial and therefore cannot raise the issue for the first time on appeal. (People v. Lindberg (2008) 45 Cal.4th 1, 25.)
We acknowledge the court failed to provide a specific limiting instruction, but Logan did not request one. " '[A]bsent a request by defendant, the trial court has no sua sponte duty to give a limiting instruction.' [Citations.]" (People v. Smith (2007) 40 Cal.4th 483, 516; see Evid. Code, § 355.)
The Supreme Court has "recognize[d] a possible exception in 'an occasional extraordinary case in which unprotested evidence . . . is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose.' [Citation.]" (People v. Hernandez (2004) 33 Cal.4th 1040, 1051-1052; accord, People v. Farnam (2002) 28 Cal.4th 107, 163-164.) This is no such case.
Defendant contends Logan's failure to request a limiting instruction constitutes ineffective assistance of counsel. To establish ineffective assistance of counsel, a defendant must show (1) defense counsel did not provide reasonably effective assistance in view of prevailing professional norms; and (2) defense counsel's deficient performance was prejudicial. (See People v. Oden (1987) 193 Cal.App.3d 1675, 1681, citing Strickland v. Washington (1984) 466 U.S. 668, 687-688.) "It is . . . particularly difficult to establish ineffective assistance of counsel on direct appeal, where we are limited to evaluating the appellate record. If the record does not shed light on why counsel acted or failed to act in the challenged manner, we must reject the claim on appeal unless counsel was asked for and failed to provide a satisfactory explanation, or there simply can be no satisfactory explanation." (People v. Scott (1997) 15 Cal.4th 1188, 1212.)
The record before us " 'does not illuminate the basis for the attorney's challenged acts or omissions . . . .' " (People v. Silvey (1997) 58 Cal.App.4th 1320, 1329.) Logan was never asked to explain why he did not request a limiting instruction. "When . . . defense counsel's reasons for conducting the defense case in a particular way are not readily apparent from the record, we will not assume inadequacy of representation unless there could have been ' "no conceivable tactical purpose" ' for counsel's actions. [Citations.]" (People v. Earp (1999) 20 Cal.4th 826, 896; see People v. Jones (2003) 29 Cal.4th 1229, 1254 [" ' "[T]here is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.' " ' "].) Here, we cannot conclude Logan's conduct had no conceivable tactical purpose. For instance, he may have believed a request for a limiting instruction would have imprudently drawn further attention to the convictions. (See People v. Hinton (2006) 37 Cal.4th 839, 878; People v. Freeman (1994) 8 Cal.4th 450, 495.) In addition, for the same reasons detailed at pages 24 through 25, post, we see no reasonable probability defendant would have obtained a more favorable result had such an instruction been requested and given. Accordingly, we reject defendant's claims of ineffective assistance of counsel.
c. Defendant cannot contest the admission of evidence pertaining to his contacts with law enforcement in 2006. Exclusion of his testimony about why related criminal charges were dismissed in 2009 did not amount to prejudicial error.
i. Background.
In a motion in limine, Sangree asked the trial court to admit testimony concerning defendant's marijuana grow in 2006:
"The [P]eople will seek to call . . . Hermosillo to testify regarding a contact with defendant in June 2006, when an indoor marijuana grow was located along with surveillance cameras monitoring the interior rooms. This type of set-up is very similar to the indoor grow and surveillance system in the current case.In a separate memorandum, Logan highlighted the relevance of defendant's contacts with law enforcement in 2006 and related charges that were dismissed in 2009:
"The [P]eople will seek to call Detective Caleb Swanson to testify regarding a contact with . . . defendant in August 2006, and his observations of . . . defendant's marijuana grow at that time. Detective Frank Zaragoza may be called to testify concerning [the] follow-up investigation that he undertook.
"While neither of the above incidents resulted in a conviction, they are both highly probative to contested trial issues in the current case, and will be offered under Evidence Code [section] 1101[, subdivision ](b) to show knowledge, plan, and absence of mistake or accident as to amounts cultivated." (Underlining omitted.)
"The evidence will . . . show that the Tulare County Sheriff visited . . . defendant on several occasions, saw the grow, inspected it and found no violation of law. In 2006 . . . defendant was visited by the Sheriff, his plants were inspected, and he was told he was in compliance with the law.
"In 2009 . . . defendant and two others were arrested with over 200 plants, and when the defense supplied the People with the approvals of seven other qualified patients, they dismissed the case before trial. The dismissal is relevant to the reasonableness of . . . defendant's belief that his actions were lawful in this instance. Michelle Wallis, the prosecutor on the 2009 case, insisted on setting out her reasons for the dismissal on the record. No minute order carries the effect of the actual words the [p]rosecutor spoke when she dismissed the case.
"These prior contacts are relevant to . . . [d]efendant's reasonable good faith belief that he was in compliance with the applicable laws . . . ."
At a pretrial hearing, the attorneys and the court conferred about the admissibility of evidence pertaining to defendant's contacts with law enforcement in 2006:
"THE COURT: [¶] . . . [¶] Now, the prior contacts. Reading Mr. Logan's brief and Mr. Sangree's brief, this is difficult for the court because they really cut both ways here. . . . [Defendant]'s been contacted several times, told he's in complete compliance and no problem. [¶] . . . [¶] . . . That would certainly in my mind go to his state of mind as to whether he's possessing it with intent to sell.
"MR. SANGREE: Your Honor, for clarification, I have no evidence that . . . defendant has ever been told he was in compliance with marijuana laws. [¶] In fact, . . . the contacts in August of 2006 resulted in a felony case which was an open case until 2009. It was eventually dismissed, but it was prosecuted for several years as a felony case, and so I don't have any evidence that . . . defendant was told that he was in compliance.
"THE COURT: Well, Mr. Logan, do you intend to have that evidence brought out during the trial of the prior contacts?
"MR. LOGAN: Of course, your Honor, because the police came several times, inspected his operation and told him he was in complete compliance with the law. I think that's tremendously relevant.
"THE COURT: Well, I would be inclined to agree with you, but your client is going to have to have those officers that told him that. Otherwise, it's hearsay evidence.
"MR. LOGAN: It goes to his state of mind if that's what he was told, then it comes in regarding his state of mind on the possession with intent to sell.Thereafter, Logan and the court discussed the admissibility of evidence pertaining to the charges that were dismissed in 2009:
"THE COURT: If I let it in even for that, . . . and you don't produce the officers, I'm going to allow the prosecution to comment even at the time of . . . argument that if that were true and he was told that, where are the officers to prove that? So -
"MR. LOGAN: You're gonna put a burden on us to produce evidence?
"THE COURT: I'm not putting a burden on you. I'm just saying if he testifies to that for his state of mind that he was told by officers and you don't call those officers, I think it's perfectly permissible for the prosecution to comment on the fact that those officers weren't called, and that's my ruling, and that's what's going to happen. So if you're going there, be careful, I'm warning you right now.
"MR. LOGAN: . . . If [defendant]'s state of mind is at issue, then what he was told can come in — even if it is hearsay, can come in on his state of mind.
"THE COURT: I'm saying it can. [¶] . . . [¶] . . . So the prior contacts it appears are not going to be a problem."
"MR. LOGAN: We also have the [20]09 charges where [defendant] and two other people were growing 200 marijuana plants . . . . I provided Ms. Wallis with seven additional approvals making a total of 10 doctors' approvals, and she made the comments that I have attached that I've supplied with the court, the fact if she had been told earlier, she would have dismissed it because apparently, . . . the official position of the District Attorney's Office was that 10 people with 200 plants wasn't a crime. That's why they dismissed it.
"So I think that that is relevant, and I think . . . that [defendant] should be allowed to testify that that's what was said in open court. That's what was conveyed to him, and I think that that is very relevant to his understanding, his intent that he was not, in fact, breaking the law.
"I think that that is the issue when you're charged with a crime . . . that involves a mental element that the fact that . . . defendant did not understand he was breaking the law, and that also ties in with my mistake of fact issue on the jury instructions that if he was growing too much, did he know he was growing too much?
"Well, he had in this case harvested a number of plants that were well within his own recommendation, and then all of a sudden he's committing a crime because he has too much, but the number of plants that were discovered having been harvested, it was well within his own personal recommendation and certainly much less than the 200 in the [20]09 case where it was dismissed.
"THE COURT: I don't intend to allow the evidence in of Ms. Wallis's statement. . . . I don't think her statements are going to be admissible. It's her analysis of that particular case. [¶] Certainly, . . . defendant can testify he was arrested before and those charges were dismissed. That's all . . . public record. So he can testify about that, but I'm not going to allow Ms. Wallis's statements in."
On direct examination, defendant testified about his contacts with police officers in 2006, his subsequent arrest, and the dismissal of criminal charges in 2009. (Ante, at pp. 8-9.) Logan then attempted to elicit testimony about why the charges were dropped:
"[MR. LOGAN:] And was there a particular reason that you understand why it was dismissed?
"MR. SANGREE: Objection, calls for hearsay, speculation.
"THE COURT: Sustained. [¶] . . . [¶]
"[MR. LOGAN:] Were you in court when the District Attorney stated on the record why it was dismissed?
"MR. SANGREE: Objection, relevance.
"THE COURT: Sustained.
"MR. LOGAN: Would ask the court to take judicial notice of the proceeding, the transcript of the proceedings.
"THE COURT: We've already talked about this in limine. The fact that it's dismissed . . . that's as far as we'll go on this issue.
"MR. LOGAN: Okay."
ii. Analysis.
Defendant alleges the court "committed prejudicial error when it permitted the prosecution to present evidence regarding the uncharged 2006 contacts with law enforcement." (Some capitalization omitted.) However, the record clearly shows he wanted the court to admit such evidence as proof of his state of mind and the court obliged. We will not countenance the notion a party may advocate the admission of certain evidence at trial and later complain about the admission of that very evidence on appeal. (See People v. Ramos (1997) 15 Cal.4th 1133, 1168 ["Since [the defendant] 'is responsible for the introduction of [the] evidence, he cannot complain on appeal that its admission was error.' "]; People v. Williams (1988) 44 Cal.3d 883, 912 ["It is axiomatic that a party who himself offers [the] evidence is estopped to assert error in regard thereto."].)
Next, defendant challenges "the court's refusal to allow defense evidence . . . explain[ing] how the dismissal of the earlier [2009] case influenced [his] belief that he was complying with the law . . . ." Specifically, he wanted to testify he heard a statement by Wallis absolving him of wrongdoing because she received 10 medical marijuana recommendations for 10 different individuals, which accounted for the 200 marijuana plants found at his former residence. Even if we assume, arguendo, Wallis's comment could have been admitted, we do not find its exclusion prejudicial.
By constitutional mandate, "[n]o judgment shall be set aside, or new trial granted, in any cause, on the ground of . . . the improper admission or rejection of evidence, . . . unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13.) "[A] 'miscarriage of justice' should be declared only when the court, 'after an examination of the entire cause, including the evidence,' is of the 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson, supra, 46 Cal.2d at p. 836; accord, People v. Callahan, supra, 74 Cal.App.4th at p. 363.)
Here, it was not reasonably probable that a result more favorable to defendant would have been reached. The record establishes police officers searched his residential property on October 19, 2012, and found almost 100 marijuana plants; over 400 pounds of fully processed and partially processed marijuana and marijuana shake; nearly two pounds of concentrated cannabis, which defendant conceded was not for his own personal medical use; specialized equipment for growing marijuana indoors and manufacturing concentrated cannabis; packaging materials; and over $3,000 in cash. In addition to defendant, officers encountered Borges, Cynthia, Macias, Smith, and Sweeney, all of whom were hired to process or otherwise handle the marijuana. Although there were valid medical marijuana recommendations for defendant and Sweeney, there were no such approvals for Borges, Cynthia, Macias and Smith. In addition, there were no valid recommendations for "association members" Clark, Ellis, Fowler, and McClain. Nor was there evidence any of these individuals was a primary caregiver of a qualified patient. The October 6, 2012, text conversation exhibited a sales transaction between defendant and Macias, not a reimbursement to cover overhead costs and operating expenses. Moreover, while defendant maintained he formed a legitimate marijuana patients association and registered with various dispensaries, there was no corroborating documentation. (See People v. Orlosky (2015) 233 Cal.App.4th 257, 269, 271 [business formality a relevant evidentiary criterion whose probative value increases with the size of the marijuana operation in question].) Overall, these facts undermined assertions defendant merely possessed medical marijuana for his own personal use; possessed medical marijuana as a primary caregiver; and/or cultivated medical marijuana collectively or cooperatively with qualified patients and/or their designated primary caregivers. Indirect evidence of his belief he complied with the relevant laws in 2009 likely would not have changed the jury's verdict on counts 1 and 3.
See California Attorney General's Guidelines for the Security and Non-diversion of Marijuana Grown for Medical Use (Aug. 2008) (<https://oag.ca.gov/system/files/attachments/press_releases/n1601_medicalmarijuanaguidelines.pdf> [as of May 15, 2017]) (Guidelines). (See generally Guidelines, § IV.A.1, p. 8 [statutory cooperatives must file articles of incorporation and annually report individual members' transactions, inter alia]; id., § IV.A.2, p. 8 [collectives should organize as some form of business to carry out its activities]; id., § IV.B.2, p. 9 [to engage in medical marijuana transactions, collectives and cooperatives must obtain a seller's permit and, in some cities and counties, a business license]; id., § IV.B.3, p. 9 [collectives and cooperatives should maintain records on-site verifying an individual member's status as a qualified patient or primary caregiver and tracking the expiration of his or her medical marijuana recommendation and/or identification card].)
The Attorney General issued the Guidelines pursuant to section 11362.81, subdivision (d). Although they are not binding, they are entitled to considerable weight. (London, supra, 228 Cal.App.4th at p. 554; People v. Colvin (2012) 203 Cal.App.4th 1029, 1040, fn. 11; People v. Hochanadel (2009) 176 Cal.App.4th 997, 1011.)
III. Defendant's claims of instructional error.
a. Standard of review.
"A claim of instructional error is reviewed de novo." (People v. Ghebretensae (2013) 222 Cal.App.4th 741, 759, citing People v. Guiuan (1998) 18 Cal.4th 558, 569-570.)
b. The trial court did not err when it refused to give defendant's requested instruction on mistake of fact and issued CALCRIM No. 3407.
i. Background.
In a memorandum, Logan argued defendant's contacts with law enforcement in 2006 and his dismissed charges in 2009 "[went] directly to the reasonableness of his mistake of fact . . . that he would have had, maybe, 'too much' [medical marijuana] for his own personal allowed use, plus that of his associates[,] . . . and certainly to his state of mind regarding the possession for sale charge." Logan specified "[t]here [wa]s no assertion that [defendant] was mistaken in his understanding of the law" and "testimony w[ould] show that . . . [defendant] followed all applicable laws." Logan asked the court to instruct the jury on mistake of fact. In a separate memorandum, Sangree opposed the request for CALCRIM No. 3406 (Mistake of Fact) and asked the court to issue CALCRIM No. 3407 (Defenses: Mistake of Law).
At a jury instruction conference, the following colloquy ensued:
"MR. LOGAN: I think that the mistake of fact would be that the yield of the plants would have been so much that it then would support an inference of possession with intent to sell. [¶] I think we've had testimony that there was the cultivation projects that yielded very little and none on occasion in prior years and that this particular marijuana in this case may have had some problems with it with mold, et cetera, and I think that there's also the mistake of fact whether or not he believed that the girls had their authorization because he was told that. I think that's a jury issue as to whether or not that is believable evidence. [¶] . . . [¶]
"THE COURT: . . . [T]o me, a mistake of fact would be hey, I'm growing these plants and they look great. I bought 'em at the nursery. I didn't know they were marijuana, and that might be a mistake of fact, but here, there's no question that your client absolutely knew he was growing marijuana. [¶] . . . [¶]
"MR. LOGAN: . . . [¶] [Defendant] testified . . . that the amount was okay for him and his associates, including the dispensary, thousands of dispensary people. [¶] If . . . they say it's too much, it's a jury issue whether or not he reasonably believed that . . . he had enough to supply him and his associates, and that's the fact they have to determine, whether or not that was a reasonable mistake of fact. [¶] Whether it is a mistake of fact also is a jury issue, goes to weight and credibility and all that kind of stuff, but I think that unless they know that if he had an actual, good faith, reasonable belief that it was okay, and then the law says it was okay, it's not a mistake of law.
"The mistake of law would be misunderstanding that he could grow as much as he wanted to. That would be a mistake of law 'cause the law is an amount reasonably related to the current medical needs of he and his associates, and the amount of marijuana that is there . . . raises a factual question, and I think that the mistake of fact instruction is, in fact, the basis of a major part of the defense here 'cause I think it is a factual determination that the jury must make.
"THE COURT: Mr. Sangree?
"MR. SANGREE: . . . [I]t appears that the mistake that the defense is asserting . . . was whether these three women had recommendations. That is not relevant to any of the elements of the charged offense. [¶] . . . I don't understand what other mistake he's asserting . . . .
"THE COURT: The mistake is he'd been through all this before and was under the belief that everything he was doing was legal because he'd been arrested for the very same crime before and it got dismissed.
"MR. SANGREE: That's not a mistake of fact, that's a mistake of law.
"MR. LOGAN: But that mistake was based on the prior case [that] had 200 plants, and in this case we have essentially 83 growing plants.
"THE COURT: . . . I will give mistake of law and reject . . . defendant's request for mistake of fact."
After close of evidence, the court issued CALCRIM No. 3407:
"It is not a defense to the crime of possession of marijuana for sale, cultivating marijuana, possession of concentrated cannabis[,] or sale or giving away marijuana that . . . defendant did not know that he was breaking the law or that he believed that his act was lawful."
ii. Analysis.
" 'The trial court has the duty to instruct on general principles of law relevant to the issues raised by the evidence [citations] and has the correlative duty "to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues." [Citation.]' " (People v. Alexander (2010) 49 Cal.4th 846, 920.) "When the evidence is minimal and insubstantial, there is no duty to instruct." (People v. Cooksey (2002) 95 Cal.App.4th 1407, 1410; see People v. Tufunga (1999) 21 Cal.4th 935, 944 [" '[A] party is not entitled to an instruction on a theory for which there is no supporting evidence.' "].)
"Generally, a crime is not committed 'unless there is a union of act and either wrongful intent or criminal negligence. [Citations.]' [Citations.] Penal Code section 26 lists classes of persons deemed incapable of committing crimes, including '[p]ersons who committed the act . . . charged under an ignorance or mistake of fact, which disproves any criminal intent.' [Citation.]" (People v. Givan (2015) 233 Cal.App.4th 335, 343, italics omitted.) "When a person commits an act based on a mistake of fact, his guilt or innocence is determined as if the facts were as he perceived them." (People v. Beardslee (1991) 53 Cal.3d 68, 87.) "[T]he . . . 'defense' of mistake of fact requires, at a minimum, an actual belief 'in the existence of circumstances, which, if true, would make the act with which the person is charged an innocent act . . . .' [Citations.] For general intent crimes, the defendant's mistaken belief must be both actual and reasonable, but if the mental state of the crime is a specific intent or knowledge, then the mistaken belief must only be actual. [Citations.] In all cases, however, the defendant's mistaken belief must relate to a set of circumstances which, if existent or true, would make the act charged an innocent act." (People v. Lawson (2013) 215 Cal.App.4th 108, 115.) "As a general matter, . . . a mistake of fact defense is not available unless the mistake disproves an element of the offense." (In re Jennings (2004) 34 Cal.4th 254, 277.)
" ' "A mistake of fact" is where a person understands the facts to be other than they are; whereas a "mistake of law" is where a person knows the fact as they really are, but has a mistaken belief as to the legal consequences of those facts.' [Citation.]" (People v. La Marr (1942) 20 Cal.2d 705, 710.) "Generally, mistake of law is not a defense to a crime." (People v. Cole (2007) 156 Cal.App.4th 452, 483; see People v. Meneses (2008) 165 Cal.App.4th 1648, 1662-1663 ["A mistake of law, in its strict sense, means ignorance that the penal law (of which one stands accused) prohibits one's conduct—and ignorance on this point 'is almost never a defense.' "].) The California Supreme Court explained:
" 'It is an emphatic postulate of both civil and penal law that ignorance of a law is no excuse for a violation thereof. Of course it is based on a fiction, because no man can know all the law, but it is a maxim which the law itself does not permit any one to gainsay . . . . The rule rests on public necessity; the welfare of society and the safety of the state depend upon its enforcement. If a person accused of a crime could shield himself behind the defense that he was ignorant of the law which he violated, immunity from punishment would in most cases result.' [Citations.]" (People v. Snyder (1982) 32 Cal.3d 590, 592-593; see People v. Hagedorn (2005) 127 Cal.App.4th 734, 748 [" '[W]e "require citizens to apprise themselves . . . of statutory language . . . ." [Citations.]' [Citation.] They are presumed to know the law [citation]; ignorance of the law is no excuse for a violation thereof [citation] . . . ."].)"Mistake of law can be a valid defense when the crime requires specific intent if the mistake of law negates the specific intent of the crime" (People v. Cole, supra, 156 Cal.App.4th at p. 483; accord, People v. Howard (1984) 36 Cal.3d 852, 862-863) and "such . . . belief was held in good faith" (People v. Vineberg (1981) 125 Cal.App.3d 127, 137).
In his brief, defendant clarified his position on mistake of fact:
"The lynch pin of the prosecution case was the amount of marijuana at the grow. Rader testified . . . his opinion was based on the sheer amount of marijuana in the garage: two people could not claim 188 pounds of marijuana. . . . [¶] But [defendant] testified that he was not sure how much usable marijuana he had grown. Much of the crop had mold and was thus not usable for medicine. . . . Because he was unable to inspect the marijuana that was drying in the garage, he was unable to determine whether he had more marijuana than was necessary for this association. . . . There were times when he lost the entire crop. . . . [Defendant]'s crop in 2011 was not productive because many of the plants were moldy or were not medicinal quality. . . .
"In addition, [defendant] testified that he believed each of the women working as trimmers had marijuana cards. . . . Rader relied on that absence of recommendations in rendering his opinion.
"Clearly, the question whether [defendant] reasonably believed that his production of marijuana sufficient for medicinal marijuana was relevant to Rader's opinion that the quantity of marijuana alone was evidence of intent to sell; the same logic applies to the question whether or not
[defendant] knew the three women did not have recommendations. Each of those factual errors goes to the heart of the defense, and the jury should have been instructed accordingly."We are not convinced the trial court erred when it refused to give defendant's requested instruction on mistake of fact. First, with respect to defendant's uncertainty about the amount of usable marijuana he had grown, we find persuasive the Fourth Appellate District's analysis in People v. Orlosky, supra, 233 Cal.App.4th at pages 275 through 276:
"In defendant's trial, factors such as the potential yield from the plants and the amount medically needed by defendant were not presented as actual facts that defendant could have misperceived to potentially relieve him of culpability; rather, they were presented as opinions and matters that could vary depending on the circumstances. . . . [¶] On this record, showing a multiplicity of views and opinions concerning yield expectations and reasonable usage amounts, a defense claim that defendant miscalculated or misunderstood these matters arose not from misperceptions of the facts as they actually were but rather from the existence of different viewpoints and uncertainties concerning yield and usage amounts. These differing views and uncertainties were relevant for the jury to consider when evaluating all the circumstances to determine whether defendant confined his possession and cultivation to amounts reasonably related to medical purposes, but they were not actual facts that were misunderstood by defendant as normally contemplated by the mistake of fact defense."Second, if the mistaken belief that Borges, Smith, and Cynthia possessed valid approvals were true, it would not disprove any of the elements of the crime of possession. (See ante, at p. 8.) It is unlikely this belief alone would disprove defendant's specific intent to sell in view of the October 6, 2012, text conversation between defendant and Macias and the amount of marijuana; the absence of approvals for Clark, Ellis, Fowler, Macias, and McClain; and the presence of specialized equipment, packaging material, and over $3,000 in cash at defendant's residence at the time of the search.
Defendant contends CALCRIM No. 3407 was improper because a mistake of law defense may be raised where the crime charged involves specific intent, such as possession of marijuana for sale. As noted, mistake of law can be a valid defense if it negates the specific intent of the charged crime. (People v. Cole, supra, 156 Cal.App.4th at p. 483.) In the instant case, defendant believed his conduct was legal under the CUA and MMP. His misapprehension of what was legally required to sustain that affirmative defense, however, did not negate any element of the offense of possession of marijuana for sale, including the specific intent to sell marijuana. Thus, we find the court properly issued CALCRIM No. 3407.
As supporting authority, defendant cites People v. Urziceanu, supra, 132 Cal.App.4th 747, in which the Third Appellate District concluded a good faith mistake of law was a valid defense to conspiracy to sell marijuana. Unlike possession for sale of marijuana, which requires possession with the specific intent to sell, conspiracy requires proof of a specific intent to commit an unlawful act. (Id. at pp. 778-779.)
c. The trial court did not err when it refused to give defendant's requested special instructions.
i. Background.
Defendant proposed two special instructions with regard to medical marijuana transactions. One, titled "Defendant's Requested Special Instructions [¶] No. 2" (some capitalization omitted) reads: "No individual may cultivate or distribute marijuana for profit." The other, titled "Defendant's Requested Special Instructions [¶] No. 6" (some capitalization omitted) reads: " 'Profit' as used in these instructions is defined as: The surplus remaining after total costs are deducted from total revenue, or a financial gain, especially the difference between the amount earned and the amount spent in buying, operating, or producing something."
At a jury instruction conference, the court refused to give Special Instruction No. 2:
"Well, that's certainly a statement of the law, but I don't intend to give it here. [¶] Cultivation of marijuana for a profit or without a profit is illegal, and the only issue it may . . . is possession for sale, but I think that's adequately covered."The court also refused to give Special Instruction No. 6.
After close of evidence, the court issued CALCRIM No. 2352 (Possession for Sale of Marijuana):
"[D]efendant is charged in Count 1 with possession for sale of marijuana. To prove that . . . defendant is guilty of this crime, the People must prove six different things:
"One, . . . defendant possessed a controlled substance; two, . . . defendant knew of its presence; three, . . . defendant knew that the substance's nature or character was a controlled substance; four, when . . . defendant possessed the controlled substance, he intended to sell it; [five,] the controlled substance was marijuana; and [six,] the controlled substance was in a usable amount.
"Selling for the purpose of this instruction means exchanging the marijuana for money, services[,] or anything of . . . value."
ii. Analysis.
Defendant claims a "serious instructional error occurred" because "the court instructed the jury with regard[] to possession for sale without clarifying that the MMP[] allows growers to provide medicinal marijuana to dispensaries" and "[t]he court should have provided the jury with instructions confirming that receiving reimbursement for providing medicinal marijuana fell within the protection of the CUA and MMP[]."
"[T]here is no requirement that the jury be instructed in the precise language requested by a party." (People v. Williams (1980) 101 Cal.App.3d 711, 719.) "[T]he test to be applied is not whether the proposed instruction was correct, but whether the jury was fully and fairly instructed on the applicable law." (People v. Jenkins (1973) 34 Cal.App.3d 893, 899.) "A trial court may properly reject an instruction proposed by the defendant if the instruction incorrectly states the law; is argumentative, duplicative, or potentially confusing; or is not supported by substantial evidence." (People v. Zaragoza (2016) 1 Cal.5th 21, 53.)
A sale of an illegal drug is a transfer of possession of the drug to another for money (People v. Daniels (1975) 14 Cal.3d 857, 859; People v. Peck (1996) 52 Cal.App.4th 351, 357) or for something other than money (see People v. Lazenby (1992) 6 Cal.App.4th 1842, 1843-1845 [trial court properly instructed jury that possession for sale of cocaine base includes an exchange for favors, services, goods, and other non-cash benefits].)
"Though nothing in the MMP[] allows any individual or group to cultivate or distribute marijuana for profit [citation], the Guidelines allow marijuana grown through a nonprofit collective or cooperative to be '[a]llocated based on fees that are reasonably calculated to cover overhead costs and operating expenses.' [Citations.]" (London, supra, 228 Cal.App.4th at p. 564.)
Here, there was scant evidence defendant was a member of or grew marijuana through a collective or cooperative. (See ante, at pp. 24-25.) The court correctly refused to give the instructions.
IV. The cumulative effect of the alleged errors did not warrant reversal of the judgment.
"[A] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error." (People v. Hill (1998) 17 Cal.4th 800, 844.) "A claim of cumulative error is in essence a due process claim . . . ." (People v. Rivas (2013) 214 Cal.App.4th 1410, 1436.) " 'The "litmus test" for cumulative error "is whether defendant received due process and a fair trial." ' [Citation.]" (Ibid.) "[T]he reviewing court must 'review each allegation and assess the cumulative effect of any errors to see if it is reasonably probable the jury would have reached a result more favorable to defendant in their absence.' [Citation.]" (People v. Williams (2009) 170 Cal.App.4th 587, 646.) Having reviewed and analyzed each alleged error, we do not conclude there was cumulative error the effect of which was to deprive defendant of due process and a fair trial. Therefore, we reject the claim.
DISPOSITION
The judgment is affirmed.
/s/_________
DETJEN, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
FRANSON, J.