APPEAL from a judgment of the Superior Court of San Diego County, Kerry Wells, Judge. Affirmed in part; reversed in part. (Super. Ct. No. SCD 198684).
The opinion of the court was delivered by: Benke, J.
CERTIFIED FOR PUBLICATION
A jury found appellant Nathaniel Archer guilty of cultivation of marijuana in violation of Health and Safety*fn1 Code section 11358, a felony [count 1], and of simple possession of marijuana in violation of section 11357, subdivision (a) [as a lesser included offense of count 2].*fn2 Archer waived a jury trial on a prior conviction, and the trial court made a true finding he was convicted of a "strike" prior in 1986 (Pen. Code, §§ 667, subds. (b)-(i), 1170.12). At sentencing, the court struck the 22-year-old strike prior under Penal Code section 1138, placed Archer on formal probation for three years and ordered him to pay various fines and fees.
On appeal, the parties agree the trial court erred when it included the numerical limits set forth in section 11362.77, subdivision (a) of the Medical Marijuana Program Act (MMPA) in instructing the jury regarding the amount of medical marijuana that Archer could lawfully possess and/or cultivate because this section unlawfully amends the Compassionate Use Act (§ 11362.5) (CUA) passed by voters in 1996 as Proposition 215. The parties disagree, however, whether that error was harmless.
Archer contends that because he possessed and/or cultivated an amount of marijuana in excess of the numerical limits set forth in section 11362.77, subdivision (a), his convictions were a fait accompli and were not based on a determination of the medical marijuana needs of Archer and at least two of his "patients" who had designated him as their "primary caregiver" within the meaning of section 11362.5, subdivision (e).
The People argue that because Archer admitted he was growing marijuana for at least four other people in addition to himself, and because as a matter of law he does not qualify as a primary caregiver for the only two qualified patients he identified at trial, the instructional error was harmless beyond a reasonable doubt.
Assuming arguendo section 11362.77 is unconstitutional, we agree with the People that the instructional error was harmless in connection with Archer's conviction for cultivating marijuana in violation of section 11358. Archer admitted he was growing marijuana for at least four other people and he proffered no evidence to show he was the primary caregiver for any of them, including the two that testified on his behalf at trial. It was thus unlawful for Archer to grow any amount of marijuana for others.
However, in connection with his conviction for simple possession under section 11357, subdivision (a), we conclude the instructional error-capping the amount of marijuana Archer could lawfully possess-was prejudicial. Archer himself was a qualified patient in April 2006. As such, he was entitled to possess an amount of marijuana reasonably related to his own medical needs. (See § 11362.5, subd. (d).) Unlike his cultivation of marijuana, the record is silent regarding whether the 1.72 pounds of dried marijuana Archer possessed was for his own personal medical needs, as opposed to the needs of others. Because Archer testified he was using about a half pound of marijuana each month in the April 2006 timeframe, we conclude it was for the jury to decide whether the 1.72 pounds of marijuana he then possessed was reasonably related to his then own medical needs. We thus reverse Archer's conviction for simple possession.
FACTUAL AND PROCEDURAL BACKGROUND
In early April 2006, Archer's mother and her husband went to a home she owned where Archer had lived since 1991. Because Archer was in the process of moving and was not at home, Archer's mother and her husband let themselves into the house. They discovered Archer was growing marijuana and called the police.
Police entered the house and discovered 98 marijuana plants growing in Archer's bedroom. Police also found business cards in the house that said "Medi Clone." A medical symbol and a marijuana leaf appeared on the cards, along with two phone numbers and an e-mail address. Police also found a second business card, similar to the first but in color, with two names, Nathan and Ryan. The bedroom was set up to create an environment conducive to grow marijuana, including black plastic over the windows, special duct work and hooks for hanging grow lights, among other equipment.
Police found jars in the kitchen containing dried marijuana leaves and residue from marijuana. Police found 780 grams, or 1.72 pounds, of marijuana in the jars. Police also found items in the garage used to grow marijuana, including electrical cords, about 100 pots that ostensibly were used to grow marijuana and ballasts for lights. There was also marijuana leaves scattered on the floor. On the wall of the garage police found a document indicating the resident was a medical marijuana caregiver, but the document did not include any specific identifying information.
Rodolfo Reyes and Scott Olson testified at Archer's trial. Reyes, a burn victim, testified that in 2003 he was burnt over 65 to 80 percent of his body. Under the supervision of his doctors, he began to use marijuana and its prescription version, Marinol, in lieu of traditional painkillers such as morphine, to reduce the myriad side effects he suffered from taking painkillers and after his body rejected morphine. Reyes had a recommendation for medical marijuana from Dr. Robert Sterner for the period September 20, 2005, through September 21, 2006.
When he got out of the hospital, Reyes testified he tried to grow his own marijuana. He eventually stopped because he could not tolerate being in the sun. He later grew plants indoors, but they were confiscated by police.
In April 2006 Reyes was using marijuana from a dispensary that has since closed. While in the dispensary, Reyes was told about Archer and his knowledge of growing marijuana plants correctly. Using a primary caregiver designation form provided by Dr. Sterner, Reyes designated Archer as his primary caregiver in either summer 2004 or 2005. Reyes testified that, as his caregiver, Archer had the right to maintain marijuana plants for Reyes for a one-year period. Reyes never received any marijuana from Archer, however.
In April 2006 Reyes testified he was using a least a pound of marijuana a month. He obtained his marijuana from medical marijuana dispensaries. He primarily used the marijuana topically, by "juicing" it and adding it to burn cream, which he applied on his body twice a day to relieve ...