Opinion
NOT TO BE PUBLISHED
Opinion following rehearing; received for posting 12/4/08.
Sup.Ct. No. CM023868
OPINION ON REHEARING
MORRISON, J.
Defendant was convicted of felony transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)), after he was stopped with a pound and a half of marijuana in his truck. The People appeal from an order reducing the conviction for felony transportation of marijuana to misdemeanor possession pursuant to Penal Code section 1181. The Attorney General contends the felony verdict was not contrary to the law or the evidence. The evidence was undisputed that defendant was transporting a pound and a half of marijuana and, since the defense was that some of the marijuana belonged to others, there was no evidence that amount was reasonably necessary for defendant’s medical needs. There was no evidence that defendant was the primary caregiver for another qualified patient, therefore he was not permitted to transport medical marijuana for another. The verdict was not contrary to the law or evidence, so we reverse the order.
This appeal is authorized by Penal Code section 1238, subdivision (a)(6).
In a petition for rehearing, defendant contends his conviction must be reversed, based on two new decisions that held the Medical Marijuana Program Act (Health & Saf. Code, § 11362.77), which caps the amount of marijuana a patient may possess, unlawfully amends the Compassionate Use Act. (People v. Kelly (2008) 163 Cal.App.4th 124, review granted Aug. 13, 2008 (S164830); People v. Phomphakdy (2008) 165 Cal.App.4th 857, pet. for review filed Sept. 9, 2008 (S166565).) The jury was instructed on the Butte County guidelines, which limit the amount of marijuana a patient may possess to one pound (see Guidelines For Butte County Physician Approved Patients; http://buttecounty.net/da/215.htm), so if those guidelines are unconstitutional, there may be an effect on defendant’s conviction. This appeal, however, is a People’s appeal from an order reducing the conviction from a felony to a misdemeanor; the merits of the conviction are not before us. Defendant’s remedy, if any, lies in an appeal from the judgment.
FACTS
Early in the morning of October 16, 2005, defendant arrived at the Chico substation, agitated and yelling that he lost his dogs and his marijuana. When defendant threatened to break into the pound to recover his dogs, the police told him he would be arrested. Defendant threatened “to do violence to the [district attorney].”
Later that day, Detective Eric Christopher was called out to a residence in Nelson to do a welfare check. He found Lee Ann Garrabrant, who was upset and had finger marks on her neck. Garrabrant lived with defendant; both had physician recommendations for marijuana and grew it together. She wanted to leave and appeared to be looking for defendant’s return.
The parties stipulated both defendant and Garrabrant had a signed physician recommendation for use of medical marijuana.
Sergeant Tom Coleman was on patrol that night and received a call to be on the lookout for defendant in his brown pickup truck. Coleman located defendant at the Butte Creek trestles between Nelson and Durham. Defendant was speeding. Coleman made a U-turn, activated his lights and siren, and pursued defendant. He followed defendant into the town of Nelson. Defendant violated various traffic laws and eventually stopped in his driveway. Defendant then struggled with the officers, so Coleman and his partner fired their tasers and defendant went to the ground. Defendant said he did not stop when pursued because he did not trust cops and was afraid of them.
Deputy Douglas Patterson arrived at the scene and searched defendant’s truck. Before he even entered it, he smelled a strong odor of marijuana and said, “it smells like weed.” Defendant said the marijuana was his and he had Prop 215. Inside the truck were eight packages of marijuana, totaling 1.593 pounds. Under Butte County guidelines, a person can possess a pound of processed marijuana for medicinal uses.
Defendant was charged with three felonies: corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)), transporting more than 28.5 grams of marijuana (Health & Saf. Code, § 11360, subd. (a)), and recklessly evading a peace officer (Veh. Code, § 2800.2, subd. (a)). It was alleged he had three prior prison terms and two strikes.
At trial, defendant’s cousin, Richard Wood, testified he also had a recommendation for medical marijuana and grew marijuana with defendant at defendant’s residence in Nelson. On October 16, the marijuana was harvested and they were going to weigh it to comply with the county guidelines permitting one pound per person. Defendant came to Wood’s house in Durham for that purpose, but Wood had unexpected company, so they could not weigh it then. Defendant left with the marijuana. The marijuana was to be split three ways between defendant, Wood, and Garrabrant.
The trial court instructed the jury: “Possession or transportation of marijuana is not unlawful if authorized by the Compassionate Use Act. The Compassionate Use Act allows a person to possess or transport marijuana for personal medical purposes when a physician has recommended such use. The amount of marijuana possessed or transported must be reasonably related to the patient’s current medical needs. [¶] In deciding if marijuana was transported for medical purposes, also consider whether the method, timing and distance of the transportation were reasonably related to the patient’s medical needs. . . . [¶] The California Health and Safety Code gives Butte County the authority to promulgate medical marijuana guidelines. Butte County’s guidelines for medical marijuana with a doctor’s recommendation include among other thing: one pound of processed marijuana.”
In closing argument, the prosecutor argued the Compassionate Use Act allows you to carry some marijuana if you have a recommendation, but the amount must be reasonably related to current medical needs. She argued a pound and a half exceeded any dosage defendant would need for a trip from Nelson to Durham and back.
Defendant objected to this argument. The court overruled the objection, allowing counsel to argue inferences that could be drawn from the evidence. Outside the presence of the jury, the defense argued the prosecution’s interpretation of the law was so narrow as to make it vague and unconstitutional. The court again overruled the defense objection.
The defense argued defendant was acting within the law as both defendant and Garrabrant had medical marijuana recommendations, as did Wood. The transportation was reasonable because it was necessary in order to weigh the marijuana.
In rebuttal, the prosecutor argued the law was based on the patient’s current medical needs and here the only patient was defendant. He was not entitled to drive around with a large amount of marijuana in public.
The jury acquitted defendant of the corporal injury charge, convicted him of felony transportation, and acquitted him of felony evading but convicted him of misdemeanor evading.
Defendant moved to modify the verdict to the lesser offense of possession of more than 28.5 grams of marijuana (Health & Saf. Code, § 11357, subd. (c), a misdemeanor, pursuant to Penal Code section 1118, subdivision (6). Defendant argued the jury instruction on the CUA was vague and therefore unconstitutional.
The trial court granted the motion. It found defendant and two others had doctor’s recommendations for medical marijuana and defendant grew marijuana for all three. He was taking it to Wood’s to be weighed when he was stopped with about 24 ounces in his possession. In support of its decision, the trial court quoted from People v. Trippet (1997) 56 Cal.App.4th 1532, 1550: “practical realities dictate there must be some leeway in applying [Health and Safety Code] 11360.” The court also quoted Chief Justice Earl Warren: “It is the spirit of the law and not the form of the law that keeps justice alive.”
The court reduced count 2 to a misdemeanor, a violation of Health and Safety Code section 11357, subdivision (c), possession of more than 28.5 grams of marijuana.
The court declined to reduce the offense to misdemeanor transportation (Health & Saf. Code, § 11360, subd. (b)) because that offense is limited to transportation of less than 28.5 grams.
DISCUSSION
I. Order Reducing Offense to Misdemeanor
The Attorney General contends the trial court erred in reducing the felony transportation charge to misdemeanor possession. He asserts the verdict was not contrary to the law or the evidence, nor was the jury misinstructed. Defendant’s position is that he was entitled to transport medical marijuana for himself and any others with a medical recommendation. The Attorney General contends that is not the law. We agree and reverse the order.
In moving for a reduction of the transportation charge, defendant argued the jury instruction was vague and unconstitutional, but the only grounds cited in support of the motion was Penal Code section 1181, subdivision 6. In granting the motion, the trial court referred to the jury instruction, but stated, “the Court is going to grant the motion under 1181(6) as being contrary to law and evidence.”
Penal Code section 1385 may not be invoked to reduce the offense of conviction to an uncharged lesser offense. (In re Varnell (2003) 30 Cal.4th 1132, 1137, citing People v. Smith (1975) 53 Cal.App.3d 655, 657-658.) We express no opinion as to whether the trial court had discretion to dismiss the transportation conviction under Penal Code section 1385.
Penal Code section 1181, subdivision 6 provides: “When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only: . . . [¶] 6. When the verdict or finding is contrary to law or evidence, but if the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may modify the verdict, finding or judgment accordingly without granting or ordering a new trial, and this power shall extend to any court to which the cause may be appealed[.]”
A trial court’s ruling on a motion under Penal Code section 1181, subdivision 6 is reviewed for an abuse of discretion. (People v. Davis (1995) 10 Cal.4th 463, 524; People v. Robarge (1953) 41 Cal.2d 628, 633.) While a trial court has broad discretion, its discretion is limited by the legal principles applicable to the case. (Adams v. Aerojet-General Corp. (2001) 86 Cal.App.4th 1324, 1330.) “The scope of discretion always resides in the particular law being applied, i.e., in the ‘legal principles governing the subject of [the] action . . . .’ Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an ‘abuse’ of discretion.” (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297.) Thus, if the trial court’s ruling was based upon a misinterpretation of applicable law, an abuse of discretion has been shown. (Katiuzhinsky v. Perry (2007) 152 Cal.App.4th 1288, 1294.)
In ruling on the motion, the trial court emphasized that the jury showed leniency, acquitting defendant of one offense and convicting him of a lesser on another count. It found there was no dispute that defendant and two others had doctor’s recommendations for medical marijuana and were transporting the marijuana only to weigh it. In finding the verdict contrary to the evidence and the law, the trial court apparently believed that a transportation charge cannot stand where the amount transported does not exceed the amount qualified, though unrelated, patients are allowed to possess. In other words, defendant could transport unlimited amounts of medical marijuana for himself and other qualified patients, so long as, cumulatively, each load was within the total individual guidelines. Because this is a misapplication of the law, the trial court abused its discretion in modifying the verdict.
Generally, the possession and transportation of marijuana in California is illegal. (See Health & Saf. Code, §§ 11357, 11360.) In 1996, the voters passed Proposition 215, the CUA, which made an exception for medical marijuana. Health and Safety Code section 11362.5, subdivision (d) 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 or approval of a physician.”
The CUA, by its express terms, does not provide a defense to the charge of transportation of marijuana. (People v. Young (2001) 92 Cal.App.4th 229, 235; People v. Trippet, supra, 56 Cal.App.4th 1532, 1550.) In Trippet, however, the court found that, “practical realities dictate there be some leeway in applying section 11360 in cases where a Proposition 215 defense is asserted to companion charges. The results might otherwise be absurd.” (People v. Trippet, supra, at p. 1550, original italics.) “The test should be whether the quantity transported and the method, timing and distance of the transportation are reasonably related to the patient’s current medical needs.” (Id. at pp. 1550-1551.) This “rule of reason” was expressly limited in Trippet to “the” patient.
The issue of whether there is a medical marijuana defense to transportation charges was addressed by the passage of the Medical Marijuana Program (MMP; Health & Saf. Code, §§ 11362.7 et seq.) in 2003. (Stats. 2003, ch. 875.) Although this case was tried and the jury instructed only with reference to the CUA, the MMP was in effect at the time of the offense. Even if we assume the MMP cannot validly limit the defense provided by the CUA (see Cal. Const., art. II, § 10, subd. (c)), Trippet’s test of whether the transportation defense applies in a particular case “survived the enactment of the MMP and remains a useful analysis to the extent it is consistent with the statute.” (People v. Wright (2006) 40 Cal.4th 81, 92, fn. 7.)
Under the MMP, three categories of individuals are not criminally liable for transporting medical marijuana: (1) a qualified patient or a person with an identification card who transports marijuana for his personal medical use; (2) a designated primary caregiver who transports marijuana for medical purposes to the qualified patient or person with an identification card; and (3) any individual who provides assistance to a qualified patient or person with an identification card or his or her primary caregiver in administering medical marijuana or acquiring the skills necessary to cultivate or administer marijuana for medical purposes. (Health & Saf. Code, § 11362.765, subds. (b)(1)-(3).)
Under the MMP, a qualified patient or primary caregiver may possess eight ounces of dried marijuana. (Health & Saf. Code, § 11362.77, subd. (a).) A greater amount may be possessed if the doctor’s recommendation indicates the statutory maximum does not meet the patient’s medical needs, or county guidelines so permit. (Health & Saf. Code, § 11362.77, subds. (b)-(c).) Butte County guidelines permitted possession of one pound of marijuana.
Defendant was a qualified patient; it was stipulated he had a doctor’s recommendation for medical marijuana. (Heath & Saf. Code, §§ 11362.7, subd. (f); 11362.5, subd. (d).) There was no evidence that defendant’s medical marijuana recommendation indicated he needed more than the one-pound amount permitted under the Butte County guidelines to meet his medical needs. There was no evidence the amount defendant transported was “reasonably related to the patient’s current medical needs.” (People v. Trippet, supra, 56 Cal.App.4th at pp. 1550-1551.) The defense was not that defendant needed the full pound and a half of marijuana for his medical needs, but that he was transporting medical marijuana for other qualified patients. In order to legally possess or transport medical marijuana for others, defendant would have to meet the requirements of Health and Safety Code section 11362.765, subdivision (b)(2) as a designated primary caregiver, or subdivision (b)(3) as an individual providing assistance with administering or acquiring the skills necessary to administer or cultivate marijuana. Nothing in the MMP permits a qualified patient to transport medical marijuana for other qualified patients without meeting these requirements.
Although a defense based on defendant being a primary caregiver was never mentioned at trial, defendant contends he provided sufficient evidence to establish he was a primary caregiver for Garrabrant. Garrabrant testified defendant had rescued her from an abusive relationship. She stayed rent-free at defendant’s and had health problems that sent her to bed. Defendant asserts the trial court erred in failing to instruct sua sponte on the caregiver portion of the CUA defense. Alternatively, he contends trial counsel was ineffective in failing to request an instruction on and assert the defense of a primary caregiver.
The MMP defines a “primary caregiver” as “the individual, designated by a qualified patient . . . who has consistently assumed responsibility for the housing, health, or safety of that patient.” (Health & Saf. Code, § 11362.7, subd. (d).) The CUA has the same definition; “[f]or a person to be a qualified primary caregiver, he or she must be ‘designated’ as such by a qualified patient, and must have ‘consistently assumed responsibility’ for the qualified patient’s ‘housing, health, or safety.’ (§ 11362.5, subd. (e).)” (People v. Mower (2002) 28 Cal.4th 457, 475.)
The trial court did not err in failing to instruct sua sponte on the primary caregiver defense because there was insufficient evidence to support such an instruction. Even if the evidence could be construed to show defendant “consistently assumed responsibility” for Garrabrant’s “housing, health, or safety,” there was no evidence that Garrabrant had designated defendant as her primary caregiver. Such a designation is required to meet the statutory definition of a primary caregiver. Absent a showing that the primary caregiver defense was available to defendant, we may not find ineffective assistance of counsel in failing to raise it. (See People v. Pope (1979) 23 Cal.3d 412, 426.)
The undisputed evidence established defendant was transporting a pound and a half of marijuana. There was no evidence all of the drugs were necessary for his medical needs; rather, defendant claimed he was transporting drugs for others as well as himself. Since neither the CUA nor the MMP provides a defense for transporting medical marijuana for others unless one is a primary caregiver or a person providing assistance with administering or cultivating marijuana (Health & Saf. Code, § 11362.765, subd. (b)(2) & (3)), the verdict, a conviction for felony transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)), was not contrary to the law or the evidence. The trial court abused its discretion in modifying the verdict under Penal Code section 1181, subdivision 6.
II. Effect of Recent Decisions
Defendant contends his conviction must be reversed because the jury was instructed that Butte County guidelines limited the amount of medical marijuana that may be possessed to one pound. He contends two recent cases have held the limitations set forth in the MMP are unconstitutional amendments of the CUA and therefore invalid. He contends the instruction on the guideline amounts was prejudicial because the jury might have accepted his medical marijuana defense if it had not been told of the guideline limitations. We need not address this issue.
The People have no right of appeal except as provided by statute. (People v. Smith (1983) 33 Cal.3d 596, 600.) This appeal is a People’s appeal from an order modifying the offense to a lesser offense, as permitted by Penal Code section 1238, subdivision (a)(6). There is no appeal from the judgment. Our review, therefore, is limited to the court’s order reducing the offense. Defendant’s remedy, if any, for possible misinstruction of the jury lies in an appeal from the judgment.
DISPOSITION
The order modifying the verdict is reversed and the matter is remanded to the trial court with directions to reinstate the verdict of conviction on count 2, Health and Safety Code section 11360, subdivision (a), and for further proceedings.
We concur: NICHOLSON, Acting P.J. RAYE, J.