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People v. Wayman

October 15, 2010


Appeal from a judgment of the Superior Court of Orange County, Lance Jensen, Judge. Affirmed. (Super. Ct. No. 08WF0444).

The opinion of the court was delivered by: Bedsworth, Acting P. J.



Robert Wayman was convicted of transporting marijuana that was found in his car during a traffic stop. At trial, he presented evidence he was qualified to use marijuana for medicinal purposes and asserted a defense under the Compassionate Use Act (CUA).*fn1 In instructing on this defense, the trial court told the jury Wayman must be a qualified user under the CUA, and the circumstances of his transportation had to demonstrate he was transporting the marijuana for his own medical use. On the latter point, they were instructed the quantity transported and the method, timing, and distance of the transportation had to be reasonably related to Wayman's current medical needs. Wayman contends it was error to instruct the jury in this fashion. He asserts the error was prejudicial because, while he showed he was qualified to use marijuana for his own personal medical use, his transportation of the drug in this case was not related to such use. We find the jury was properly instructed on the law respecting the transportation of medical marijuana and affirm the judgment in all respects.


In the early morning hours of March 8, 2008, California Highway Patrol Officer Juan Ulloa stopped Wayman for speeding, and arrested him for being under the influence of alcohol. He then searched the car and found a baggie containing one gram of marijuana by the driver's door and $120 in the glove compartment. In the trunk of the car, he found a backpack containing: 26 baggies of marijuana labeled 3.5 grams each; 5 baggies of marijuana labeled 5 grams each; 14 small bottles of concentrated cannabis; 15 brown paper lunch bags; 14 small metal screens; 5 Ziploc bags; and an electronic scale.*fn2 Wayman also had $117 and a medical marijuana card in his wallet. Attached to the card was a physician's certificate authorizing his use of marijuana for medical purposes.

Wayman was charged with transporting marijuana (§ 11360), possessing marijuana for sale (§ 11359), possessing concentrated cannabis (§ 11357) and the misdemeanor offenses of driving under the influence of alcohol and driving with a blood-alcohol content level of .08 percent or more (Veh. Code, §§ 23152, subds. (a), (b)). During his trial, narcotics investigator Brent Benson opined that, based on the items found in Wayman's vehicle, he possessed the marijuana for the purpose of sale or distribution. Wayman, however, presented evidence the marijuana was for his own personal medical use.

Specifically, Wayman testified he suffers from back pain, and when other medical treatments proved ineffective, he turned to Dr. Elaine James for help. Dr. James recommended marijuana for Wayman's condition and authorized him to use the drug for medicinal purposes. Wayman testified his marijuana consummation varies with the extent of his back pain, but he seldom goes more than a couple of days without using the drug. He also said his preferred method of use is to cook it up with other foods and eat it with his meals.

Regarding the marijuana found in his car, he said he received it from a dispensary in northern California a few days before his arrest and paid about $2,000 for it. He said he kept it in his car to appease his mother, with whom he lived, explaining, "I don't want to bring anything in [her house] that she doesn't want to be in there [such as marijuana]. So I tried to be very [discreet] about it. I put it in the backpack in . . . my car. That's why I had the cannabis in my car."

Wayman said that when he was pulled over by the police, he was on his way to his girlfriend's house. He had been drinking with his buddies earlier in the evening, but they did not use any drugs. Wayman admitted he had aspirations to start a medical marijuana delivery service someday, and had even gone as far as acquiring some websites to advertise his services in that regard. However, he insisted he did not intend to sell the marijuana he had in his car and did not possess it for any commercial purpose. He said it was solely for his own personal medical use.

The jury convicted Wayman of transporting marijuana and the two misdemeanor charges. It found him not guilty of possessing concentrated cannabis and deadlocked on the possession for sale charge, which was ultimately dismissed. The court placed him on probation and ordered him to spend 180 days in jail, with credit for time served.


Wayman claims the trial court misinstructed the jury regarding the circumstances under which a person may lawfully transport medical marijuana under California law. We disagree.*fn3

As to the charge of transporting marijuana, the court instructed the jury per CALCRIM No. 2361 that the transportation of marijuana is not unlawful if authorized by the CUA and that the CUA allows a person to transport marijuana for personal medical purposes when a physician has recommended or approved such use. The court also instructed that the amount of marijuana transported must be "reasonably related to the patient's current medical needs. In deciding if marijuana was transported for medical purposes, also ...

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