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The People v. Matthew Neil Zugsberger

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


October 25, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MATTHEW NEIL ZUGSBERGER, DEFENDANT AND APPELLANT.

(Super. Ct. No. 08F09930)

The opinion of the court was delivered by: Hoch , J.

P. v. Zugsberger CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Matthew Neil Zugsberger attempted to board a flight to New Orleans at Sacramento International Airport while in possession of three pounds of marijuana. Stipulating to the fact that he possessed this amount of marijuana, defendant asserted the Compassionate Use Act of 1996 (Health & Saf. Code, § 11362.5 (Compassionate Use Act)) as an affirmative defense.*fn1 The jury was not persuaded, concluding the amount possessed was not reasonably related to defendant's current medical needs, and found him guilty of possession and transportation of marijuana. The trial court placed defendant on five years formal probation with a four-month county jail sentence and ordered, among other things, that defendant "not knowingly associate with known or reputed users of marijuana, dangerous drugs or narcotics or knowingly be in places where narcotics or dangerous drugs are present."

On appeal, defendant claims to have been prejudiced by a number of instructional errors, asserts the jury's verdict was defective, challenges the sufficiency of the evidence to support his convictions, and contends the aforementioned probation condition is unconstitutionally overbroad. He also points out that the probation order erroneously identifies his misdemeanor possession conviction as a felony, and argues this conviction should be reduced to an infraction pursuant to Senate Bill No. 1449 (Stats. 2010, ch. 708, § 1), which became law during the pendency of this appeal. We affirm defendant's conviction and remand the matter to the trial court with directions to reconsider the challenged probation condition.

BACKGROUND

In December 2008, airport security officers were alerted to a suspicious object in defendant's checked baggage. A search of the bag revealed a CD case containing a "large block" of marijuana (418 grams) wrapped in plastic and spray painted aluminum foil. Defendant was escorted to a holding cell in the airport's administrative office and searched. Another sealed package of marijuana (106 grams) was found concealed in defendant's groin area, beneath his underwear. Defendant was also carrying a duffel bag, which contained two large packages of marijuana (423 grams each) concealed within a diving suit that was "neatly folded" and taped together with duct tape. Some of the marijuana was packaged with dryer sheets, which is "typically used to mask the odor of drugs."

Defendant was charged with possession of marijuana for sale and transportation of marijuana. At trial, he stipulated to the fact that he possessed a total of 1,370 grams of marijuana, which is slightly more than three pounds. He also admitted to transporting the marijuana to the airport. He disputed that this marijuana was possessed for purposes of sale, and asserted as an affirmative defense that his possession and transportation of marijuana was authorized by the Compassionate Use Act.

In support of this defense, defendant testified that his doctor had recommended the use of marijuana to manage pain associated with a back injury sustained while working on an oil platform in the Gulf of Mexico. He was living in Louisiana at the time of the accident, and was initially prescribed a number of narcotics for the pain. Because of the side effects of these drugs, he ultimately sought a recommendation for medicinal marijuana. Defendant's recommendation, signed by Milan L. Hopkins, M.D., recommended the use of medicinal marijuana for one year and states: "Any one of my patients may need to grow twenty-five mature plants and possess five pounds of processed cannabis for their yearly medical needs."

According to defendant, the reason he attempted to transport three pounds of marijuana to Louisiana was to have his ex-wife, a chef, convert it into pasta, ice cream, and other forms of food. He planned to stay in Louisiana for two to three weeks and then bring the food back to California for his personal medical use. Defendant also explained that he preferred eating marijuana to smoking it, and his rate of consumption varied depending on his level of pain. On a good day, he would consume 13 grams. On a bad day, he would consume a quarter of a pound.

Defendant also presented expert testimony from Christopher Conrad, "a publisher, consultant, and a specialist in cannabis issues." Conrad testified that "it takes three to five times as much cannabis when eaten to have the same effect as when smoked. However, it will last, the effect lasts longer." This is because, "instead of [the cannabis] going straight into your breathing passages and into your bloodstream directly, [it] has to go through the digestive process," which "destroy[s] a certain percentage of the material so that you only get a lesser effect." According to Conrad, three pounds of marijuana is a "common dosage," which amounts to a patient smoking five marijuana cigarettes a day over the course of a year. But if the patient is eating the marijuana rather than smoking it, the patient would need "four times that amount." Conrad also testified that it is "extremely common" for medical marijuana patients to possess the entire yearly dosage of marijuana because they either "buy in bulk, kind of like Costco," or "grow the whole year supply at once."

The jury found defendant not guilty of possession of marijuana for sale, but guilty of the lesser-included offense of simple possession. The jury also found defendant guilty of transportation of marijuana. As already indicated, defendant was placed on five years formal probation, subject to various terms and conditions. This appeal followed.

DISCUSSION

I

Compassionate Use Act

We begin with a brief overview of the Compassionate Use Act, which was adopted by the voters in 1996 "[t]o 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 . . . ." (§ 11362.5, subd. (b)(1)(A).) 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." While this provision does not specify a quantity of marijuana that a patient or primary caregiver may possess or cultivate, the marijuana possessed or cultivated must be for the "personal medical purposes of the patient." (§ 11362.5, subd. (d).) In order to satisfy this requirement, "the quantity possessed by the patient or the primary caregiver, and the form and manner in which it is possessed, should be reasonably related to the patient's current medical needs." (People v. Trippet (1997) 56 Cal.App.4th 1532, 1549 (Trippet); People v. Kelly (2010) 47 Cal.4th 1008, 1017 (Kelly) [defense applies to "any quantity of marijuana reasonably necessary for [the patient's] current medical needs"].)

As our Supreme Court has explained, section 11362.5, subdivision (d), provides a patient or primary caregiver a limited immunity from prosecution, which does not grant immunity from arrest, but does provide an affirmative defense to the crimes of possession and cultivation which may be asserted at trial or in a pretrial motion to set aside the indictment or information. (Kelly, supra, 47 Cal.4th at p. 1013; People v. Mower (2002) 28 Cal.4th 457, 464 (Mower).) The defendant bears the burden of proof as to the facts underlying the defense, but is required "merely to raise a reasonable doubt as to those facts rather than to prove them by a preponderance of the evidence." (Mower, supra, 28 Cal.4th at p. 464; People v. Frazier (2005) 128 Cal.App.4th 807, 816-817 (Frazier).)

In 2003, the Legislature enacted the Medical Marijuana Program (MMP) (§ 11362.7 et seq.). "At the heart of the MMP is a voluntary 'identification card' scheme that, unlike the [Compassionate Use Act] -- which, as noted, provides only an affirmative defense to a charge of possession or cultivation -- provides protection against arrest for those and related crimes. Under the MMP, a person who suffers from a 'serious medical condition,' and the designated 'primary caregiver' of that person, may register and receive an annually renewable identification card that, in turn, can be shown to a law enforcement officer who otherwise might arrest the program participant or his or her primary caregiver." (Kelly, supra, 47 Cal.4th at p. 1014, fns. omitted.)

In addition to providing protection against arrest, the MMP also extends the Compassionate Use Act defense to cases in which a patient or primary caregiver is charged with transportation of marijuana under section 11360. (§ 11362.765; People v. Wright (2006) 40 Cal.4th 81, 82 (Wright).) However, even before this enactment, the Court of Appeal in Trippet, supra, 56 Cal.App.4th 1532, recognized that "practical realities dictate that there be some leeway in applying section 11360 in cases where a [Compassionate Use Act] defense is asserted to companion charges. The results might otherwise be absurd. For example, the voters could not have intended that a dying cancer patient's 'primary caregiver' could be subject to criminal sanctions for carrying otherwise legally-cultivated and possessed marijuana down a hallway to the patient's room." (Id. at p. 1550.) As applied to section 11360, the Compassionate Use Act defense is limited to situations in which "the quantity transported and the method, timing and distance of the transportation are reasonably related to the patient's current medical needs." (Trippet, supra, at pp. 1550-1551; People v. Wayman (2010) 189 Cal.App.4th 215, 223 (Wayman); Wright, supra, 40 Cal.4th at p. 92, fn. 7.)

With these legal principles in mind, we turn to defendant's contentions on appeal.

II

Instructional Error

Defendant asserts a number of instructional errors. First, he claims the trial court erroneously instructed the jury on the crime of simple possession of marijuana, offered as a lesser-included offense to the crime of possession of marijuana for sale, by "omitting the weight element from . . . CALCRIM No. 2375, and replacing it with the non-existent element of 'more marijuana than the defendant was legally entitled to possess.'" Defendant asserts the same error with respect to the trial court's modification of CALCRIM No. 2361, which instructed the jury on the crime of transportation of marijuana. He also challenges the instructions on the Compassionate Use Act defense, arguing that the trial court improperly placed the burden of proof on defendant and misinformed the jury that "[t]he amount of marijuana possessed must be reasonably related to the patient's current medical needs." Finally, defendant asserts the jury was given an incorrect definition of marijuana.

Defendant did not object to any of these instructions at trial. "Failure to object to instructional error forfeits the issue on appeal unless the error affects defendant's substantial rights. [Citations.] The question is whether the error resulted in a miscarriage of justice under People v. Watson (1956) 46 Cal.2d 818. [Citation.]" (People v. Anderson (2007) 152 Cal.App.4th 919, 927.) As we explain below, we agree that the trial court erroneously instructed the jury as to the crimes of simple possession and transportation of marijuana, but find the errors to have been harmless.

A

Possession of Marijuana

The trial court instructed the jury on the lesser-included offense of simple possession as follows: "Simple possession of more marijuana than the defendant was legally entitled to possess is a lesser included offense of possession of marijuana for sale. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] One, the defendant unlawfully possessed a controlled substance; [¶] Two, the defendant knew of its presence; [¶] Three, the defendant knew of the substance['s] character and nature as a controlled substance; [¶] Four, the controlled substance was marijuana; and [¶] Five, the marijuana possessed by the defendant was more marijuana than the defendant was legally entitled to possess." (Italics added.)

As defendant correctly observes, and as the Attorney General appropriately concedes, this instruction removes an element of the crime. Section 11357, subdivision (c), requires that the amount possessed by the defendant weigh more than 28.5 grams. The trial court modified CALCRIM No. 2375, describing the elements of this offense, by removing the weight requirement and instructing the jury that the amount of marijuana must be more than defendant was legally entitled to possess.

The reason for the modification was the trial court's erroneous reading of Kelly, supra, 47 Cal.4th 1008, which held that section 11362.77 (enacted by the Legislature as part of the MMP) amended the Compassionate Use Act by prescribing a specific amount of marijuana that may be possessed by a "qualified patient," i.e., "a person who is entitled to the protections of [the Compassionate Use Act], but who does not have an identification card issued pursuant to [the MMP]" (§ 11362.7, subd. (f)). (Kelly, supra, at pp. 1012, 1016, fn. 7; § 11362.77, subd. (a) ["qualified patient . . . may possess no more than eight ounces of dried marijuana"].) This quantity limitation amended the Compassionate Use Act because the defense established by that act applies to "any quantity of marijuana reasonably necessary for [the patient's] current medical needs." (Kelly, supra, 47 Cal.4th at pp. 1017, 1043.) And while subdivision (b) of section 11362.77 also "allows possession of a quantity 'consistent with the patient's needs' that is greater than the amount set out in subdivision (a), it affords this protection only if a physician so recommends -- a qualification not found in the [Compassionate Use Act]." (Kelly, supra, at pp. 1017, 1043.) Because this amendment was not approved by the electorate, our Supreme Court held section 11362.77 to be invalid to the extent that it burdened the Compassionate Use Act defense. (Id. at pp. 1043, 1048-1049.)

Thus, Kelly held that, regardless of the MMP's quantity limitations, as long as a defendant meets the definition of a patient or primary caregiver under the Compassionate Use Act, this defendant may assert, as an affirmative defense, that he or she possessed or cultivated an amount of marijuana reasonably related to the patient's current medical needs. (Kelly, supra, 47 Cal.4th at p. 1049.) This decision does not, as the trial court believed, remove the quantity requirement found in section 11357, subdivision (c), that the marijuana possessed by defendant weigh more than 28.5 grams.

We agree with defendant that the trial court erred by removing this element of the crime from the instruction. Such an instruction relieves the prosecution of the burden of proving each element of the charged offense, violating the defendant's due process right under the California Constitution and its federal counterpart to have a jury determine each element of the offense. (People v. Flood (1998) 18 Cal.4th 470, 482, 491-492 (Flood); Carella v. California (1989) 491 U.S. 263, 265 [105 L.Ed.2d 218, 221.)

Nevertheless, we conclude the error was harmless beyond a reasonable doubt because defendant stipulated to the fact that he possessed three pounds of marijuana. This stipulation conclusively establishes that the amount of marijuana exceeded 28.5 grams. (People v. Gabriel (1943) 57 Cal.App.2d 788, 792 [stipulation that specified material facts are true and may be considered as evidence is binding on the parties and the court].) Having removed the quantity issue from contention by stipulating that he possessed more than 28.5 grams of marijuana, defendant cannot be heard to complain that he was prejudiced by the removal of this element from the jury instruction. We conclude beyond a reasonable doubt that the jury would have found this element of the crime against defendant. (Flood, supra, 18 Cal.4th at p. 504 [error removing element of the crime from jury instruction harmless where the defendant concedes or admits that element].)

Defendant also complains that the trial court replaced the 28.5 gram requirement with the words "more marijuana than the defendant was legally entitled to possess." He claims that this addition "created a legally false theory that 'lawfulness of the amount' of marijuana was an element of the offense."

We agree that the trial court erred by adding the words "more marijuana than the defendant was legally entitled to possess" to the instruction. We also agree that this addition rendered the instruction vague and confusing. Indeed, the jury expressed its confusion by sending the trial court a note asking for clarification as to "what [defendant] is legally allowed to possess." In response, the trial court explained: "The possession of marijuana without any intent to sell the marijuana and the transportation of marijuana is not unlawful if authorized by the Compassionate Use Act. The Compassionate Use Act allows anyone who holds a current medical marijuana authorization from a physician to possess an amount of marijuana, quote, reasonably related to the patient's current medical needs, close quote. [¶] The lesser-included offense to Count One, that is simple possession of marijuana, and Count Two, transportation of marijuana, are charges that require a jury to make a factual determination in regard to whether the amount of marijuana was in excess of what the defendant was legally authorized to possess. The only relevant legal authorization for the defendant to possess marijuana is pursuant to a medical marijuana authorization from a physician, and the amount allowable is the amount, quote, reasonably related to the patient's current medical needs, close quote."

This explanation makes clear the trial court's mistaken belief that an element of the Compassionate Use Act defense, i.e., that the amount possessed be reasonably related to the patient's current medical needs, had somehow become an element of the crime of simple possession. This was error. But it is an error that could not possibly have harmed defendant. As we previously explained, the defendant bears the burden of proof as to the facts underlying the Compassionate Use Act defense by raising a reasonable doubt as to those facts. (Mower, supra, 28 Cal.4th at p. 464.) By adding this additional element to the simple possession instruction, the trial court erroneously informed the jury that the People possessed the burden of proving beyond a reasonable doubt that the amount possessed was not reasonably related to defendant's current medical needs, and therefore was more marijuana than he was legally entitled to possess.

Far from being prejudicial, this error helped defendant by shifting the burden of proof as to an element of his affirmative defense to the People.

B

Transportation of Marijuana

The trial court made the same errors with respect to CALCRIM No. 2361, which sets forth the elements of the crime of transportation of marijuana under section 11360, subdivision (a). Again, the trial court removed the element requiring the amount transported to be more than 28.5 grams and replaced it with the words "more marijuana than the defendant was legally entitled to possess." For the same reasons expressed in the preceding section of this opinion, we conclude these errors are also harmless beyond a reasonable doubt.

C

Compassionate Use Act Defense

Defendant also asserts that the trial court improperly instructed the jury as to the Compassionate Use Act defense. Specifically, he argues the trial court improperly placed the burden of proof on defendant and misinformed the jury that the amount of marijuana possessed or transported must be reasonably related to the patient's current medical needs. We disagree.

As part of CALCRIM No. 2361, following the elements of the crime of transportation of marijuana, the trial court instructed the jury on the Compassionate Use Act defense: "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 a medical purpose, also consider whether the method, timing and distance of the transportation were reasonably related to the patient's current medical needs. The People have the burden of proving beyond a reasonable doubt that the defendant was not authorized to possess or transport marijuana for medical purposes. If the People have not met this burden, you must find the defendant not guilty of this crime."

Then, as part of CALCRIM No. 2375, following the elements of the crime of simple possession of marijuana, the trial court stated: "Again, possession of marijuana is not unlawful if authorized by the Compassionate Use Act." However, the written version of this instruction, which was given to the jury during deliberations, stated: "Possession of marijuana is lawful if authorized by the Compassionate Use Act. In order for the Compassionate Use Act to apply, the defense must produce evidence tending to show that his possession of marijuana was for personal medical purposes with a physician's recommendation or approval. The amount of marijuana possessed must be reasonably related to the patient's current medical needs. If you have a reasonable doubt about whether the defendant's possession or cultivation of marijuana was unlawful under the Compassionate Use Act, you must find the defendant not guilty."

Allocation of the Burden of Proof

Defendant contends the jury was improperly instructed because the written version of CALCRIM No. 2375 does not inform the jury that the People had the burden of proving beyond a reasonable doubt that the defendant was not authorized to possess or transport marijuana for medical purposes. This contention fails for two reasons.

First, defendant is wrong to believe that the People had such a burden with respect to the Compassionate Use Act defense. The People's burden was to prove beyond a reasonable doubt that defendant unlawfully possessed and transported more than 28.5 grams of marijuana while knowing of its presence and nature or character as a controlled substance. (§§ 11357, subd. (c), 11360, subd. (a).) The Compassionate Use Act renders an otherwise unlawful possession or transportation of marijuana lawful, and therefore operates as an affirmative defense to these crimes by negating the element of unlawful possession or transportation. (See Mower, supra, 28 Cal.4th at pp. 480-482.) As previously explained, the burden of proof as to the facts underlying the Compassionate Use Act appropriately resides with the defendant, although he or she is required merely to raise a reasonable doubt as to those facts rather than to prove them by a preponderance of the evidence. (Id. at p. 464; Frazier, supra, 128 Cal.App.4th at pp. 816-817.)

Thus, defendant was required to prove that a physician had recommended or approved the use of marijuana for personal medical purposes, and that the possession and transportation of three pounds of marijuana was reasonably related to his current medical needs. (§ 11362.5, subd. (d); Kelly, supra, 47 Cal.4th at p. 1017; Trippet, supra, 56 Cal.App.4th at p. 1549.) While he was not required to prove these facts by a preponderance of the evidence, he was required to put forth sufficient evidence to raise a reasonable doubt as to whether his possession and transportation of three pounds of marijuana was unlawful, as opposed to authorized by the Compassionate Use Act. (See Mower, supra, 28 Cal.4th at p. 464; see also People v. Fuentes (1990) 224 Cal.App.3d 1041, 1044 [upholding instruction requiring defendant to raise a reasonable doubt as to whether acquisition of hypodermic needle was unlawful].) The trial court was not required to instruct the jury that the People had the burden of proving beyond a reasonable doubt that defendant's possession and transportation was not authorized by the Compassionate Use Act. (Frazier, supra, 128 Cal.App.4th at pp. 820-821 [upholding Compassionate Use Act instruction informing the jury that "the burden is upon the defendant to raise a reasonable doubt as to guilt of the unlawful possession, cultivation or transportation of marijuana"].)

Second, while the trial court was not required to provide defendant's preferred instruction as to the burden of proof, it did just that. The jury was instructed: "The People have the burden of proving beyond a reasonable doubt that the defendant was not authorized to possess or transport marijuana for medical purposes. If the People have not met this burden, you must find the defendant not guilty of this crime." Defendant's only complaint is that these two sentences, while delivered orally, were omitted from the written instruction on the crime of possession of marijuana. However, reviewing the instructions as a whole, as we must (People v. Whisenhunt (2008) 44 Cal.4th 174, 220), we conclude that the jury would reasonably have believed that the People possessed the burden of proving beyond a reasonable doubt that defendant was not authorized to possess or transport marijuana pursuant to the Compassionate Use Act. While such a belief was incorrect (see Mower, supra, 28 Cal.4th at p. 464; Frazier, supra, 128 Cal.App.4th at pp. 816-818), it worked to defendant's advantage and in no way violated his constitutional rights.

Reasonably Related to Current Medical Needs

Defendant also misapprehends the law with respect to the amount of marijuana the Compassionate Use Act authorizes a patient or primary caregiver to possess or transport.

While he is correct that Kelly, supra, 47 Cal.4th 1008, invalidated the specific quantity limitations contained in the MMP, our Supreme Court also explained that, in order for the Compassionate Use Act defense to apply, "the marijuana possessed or cultivated must be for the patient's 'personal medical purposes.'" (Id. at p. 1013, quoting § 11362.5, subd. (d).) This means that the patient or primary caregiver "possessed or cultivated an amount of marijuana reasonably related to meet [the patient's] current medical needs." (Id. at p. 1049, citing Trippet, supra, 56 Cal.App.4th at p. 1549.) With respect to the crime of transportation of marijuana, the Compassionate Use Act defense applies only where "the quantity transported and the method, timing and distance of the transportation are reasonably related to the patient's current medical needs." (Trippet, supra, 56 Cal.App.4th at pp. 1550-1551; Wayman, supra, 189 Cal.App.4th at p. 223; Wright, supra, 40 Cal.4th at p. 92, fn. 7.) The jury was properly instructed as to these principles.

Nevertheless, defendant asserts that "the jury was instructed to disregard the only medical evidence presented at trial [i.e., the doctor's recommendation for a five-pound yearly dosage of marijuana], and to somehow come up with its own medical assessment, which it was not competent to do, and which was outside its province as the trier-of-fact." Not so.

Nowhere in the instructions was the jury told to disregard the amount of marijuana defendant's doctor had recommended as a yearly dosage. This was strong evidence of the amount of marijuana reasonably related to defendant's yearly medical needs. However, we disagree with defendant's suggestion that the jury should have been instructed to defer to this recommendation in resolving the issue of the amount reasonably related to defendant's current medical needs. "It is not up to the patient's doctor to determine, for the purposes of the [Compassionate Use Act], whether the quantity possessed by the patient is reasonably related to the patient's current medical needs." (People v. Windus (2008) 165 Cal.App.4th 634, 643.) "What precisely are the 'patient's current medical needs' must, of course, remain a factual question to be determined by the trier of fact. One (but not necessarily the only) type of evidence relevant to such a determination would be the recommending or approving physician's opinion regarding the frequency and amount of the dosage the patient needs." (Trippet, supra, 56 Cal.App.4th at p. 1549; Frazier, supra, 128 Cal.App.4th at p. 824 [the jury determines whether the amount of marijuana possessed by defendant is reasonably related to his or her current medical needs].)

The jury was properly instructed to consider whether the amount of marijuana possessed and transported was reasonably related to defendant's current medical needs, and whether the method, timing and distance of the transportation were reasonably related to his current medical needs. There was no instructional error.*fn2

D

Definition of Marijuana

Defendant's final claim of instructional error is that the jury was given an incorrect definition of marijuana. We disagree.

The jury was instructed: "Marijuana means all or part of the Cannabis sativa L. plant, whether growing or not, including the seeds and resin extracted from any part of the plant. It also includes every compound, manufacture, salt, derivative, mixture or preparation of the plant, its seeds or resin." This definition is provided by section 11018 of Division 10 of the Health and Safety Code, and is part of the standard CALCRIM instructions describing the crimes of possession and transportation of marijuana, CALCRIM Nos. 2375 and 2361. Section 11001 provides: "Unless the context otherwise requires, the definitions in this chapter govern the construction of this division." Sections 11357 and 11360, criminalizing the possession and transportation of marijuana are within Division 10.

Defendant argues that the jury should have been instructed, in accordance with section 11362.77, subdivision (d), that "[o]nly the dried mature processed flowers of [the] female cannabis plant or the plant conversion shall be considered when determining allowable quantities of marijuana under this section." However, the definition provided in this subdivision is expressly made to apply "when determining allowable quantities of marijuana under this section." (Italics added.) As previously explained, section 11362.77 was enacted as part of the MMP and established specific quantity limitations ("no more than eight ounces of dried marijuana per qualified patient," § 11362.77, subd. (a)) for qualified patients and primary caregivers. After Kelly, supra, 47 Cal.4th at page 1049, this quantity limitation cannot operate to burden a defense that is otherwise available under the Compassionate Use Act. Accordingly, defendant was not subject to section 11362.77's quantity limitation, and the definition used to determine whether the quantity limitation has been exceeded is likewise inapplicable.

Because the context does not otherwise require, the proper definition of marijuana was the one found in section 11018 and the jury was so instructed.

In any event, even under defendant's preferred definition, he unlawfully possessed and transported more than 28.5 grams of marijuana. Again, defendant stipulated to possessing three pounds of marijuana. He admitted to transporting this amount to the airport. He did not dispute Detective Darby Lannom's testimony that the marijuana was of high quality, consisting mainly of buds. Thus, even if the jury was told to consider only the "mature processed flowers of [the] female cannabis plant" (§ 11362.77, subd. (d)) in determining whether defendant possessed and transported more than 28.5 grams of marijuana, and whether this amount was reasonably related to his current medical needs, the result would have been the same.

III

Rendition of the Verdict

Defendant also contends the verdict with respect to the lesser-included offense of simple possession of marijuana was defective because it failed to describe the crime as defined by section 11357, and instead stated: "We, the jury in the above-entitled cause, find the defendant, Matthew Neil Zugsberger, not guilty of the crime of unlawful possession of marijuana for sale. And if found not guilty of unlawful possession of marijuana for sale, we find the defendant guilty of the crime of simple possession of more marijuana than [the] defendant was legally entitled to possess." (Italics added.)

As the Attorney General points out, defendant did not object to the form of the verdict either at the time the trial court proposed to submit it or when the jury returned its finding. The issue is therefore forfeited. (People v. Jones (2003) 29 Cal.4th 1229, 1259; People v. Bolin (1998) 18 Cal.4th 297, 330; People v. Webster (1991) 54 Cal.3d 411, 446; see also In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2 [stating that the correct legal term for loss of right based on failure to assert it in a timely fashion is forfeiture, not waiver].)

In any event, we find no prejudicial defect. "[T]echnical defects in a verdict may be disregarded if the jury's intent to convict of a specified offense within the charges is unmistakably clear, and the accused's substantial rights suffered no prejudice. [Citations.]" (People v. Webster, supra, 54 Cal.3d at p. 447, fn. omitted.) Here, the jury's intent to find defendant guilty of unlawfully possessing more than 28.5 grams of marijuana is unmistakably clear. The jury returned its verdict based on the evidence adduced during the trial, which included defendant's stipulation that he possessed three pounds of marijuana. The only disputed issues involved whether this marijuana was possessed for purposes of sale and whether the possession was authorized by the Compassionate Use Act. As previously noted, the words "more marijuana than the defendant was legally entitled to possess" referred to the Compassionate Use Act requirement that the amount of marijuana must be reasonably related to the patient's current medical needs. The verdict acquitting defendant of possession for sale and convicting him of simple possession clearly reveals that the jury credited defendant's testimony that he had no intention of selling the marijuana, but also rejected the notion that possessing three pounds of marijuana while attempting to board a flight to New Orleans was reasonably related to his current medical needs.

Defendant was convicted of unlawfully possessing more than 28.5 grams of marijuana in violation of section 11357, subdivision (c).*fn3

IV

Sufficiency of the Evidence

Defendant also challenges the sufficiency of the evidence to support the jury's determination that his possession and transportation of three pounds of marijuana was unlawful. Specifically, defendant argues that he "presented sufficient evidence demonstrating that he was a qualified patient under the Compassionate Use Act, and that he possessed and transported the marijuana for his personal medical purposes upon the recommendation of a physician, thus negating the unlawfulness element of the charged conduct." Relying on People v. Chakos (2007) 158 Cal.App.4th 357 (Chakos) and People v. Hunt (1971) 4 Cal.3d 231 (Hunt), defendant argues that the People were therefore required to present expert testimony on the medicinal use of marijuana in order to prove that his possession and transportation was not authorized by the Compassionate Use Act. And because, "[u]nder Hunt and Chakos, Detective Lannom was unqualified to testify as an expert on the medicinal use of marijuana, . . . his testimony does not constitute substantial evidence." Defendant is mistaken.

"'To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citations.]" (People v. Wallace (2008) 44 Cal.4th 1032, 1077; Jackson v. Virginia (1979) 443 U.S. 307, 317-320 [61 L.Ed.2d 560, 572-574].)

In Hunt, supra, 4 Cal.3d 231, police found defendant at an acquaintance's apartment with a hypodermic needle in his arm. The needle contained 2 ccs. of methedrine, a restricted dangerous drug. At defendant's feet was a blue and white travel case containing four 30-cc. vials of methedrine. He had prescriptions for these vials, and was prescribed the drug for "lethargy, a type of narcosis." (Id. at pp. 233-235.) The acquaintance was in a bedroom writing in a notebook next to an open brown suitcase that contained methedrine, amphetamine, and various other drugs. The notebook had a number of entries, including "'2-5-68, pay $20 for deal on two vials of meth,'" although there were no entries stating that anything was sold. (Id. at p. 234.) The arresting officer, who had "extensive training, education, and experience relating to the possession of and trafficking in dangerous drugs," testified that "based upon his experience it was his opinion that the methedrine found in the blue and white travel case and in the brown suitcase was possessed for sale. He said that his opinion was due 'to the quantity involved, the over-all street value, [and] the normal use by an individual.'" (Id. at pp. 234-235.)

The defendant was convicted of the unlawful possession for sale of the methedrine found in the blue and white travel case. (Hunt, supra, 4 Cal.3d at p. 233.) Holding the evidence was insufficient to support this conviction, our Supreme Court explained: "In cases involving possession of marijuana and heroin, it is settled that an officer with experience in the narcotics field may give his opinion that the narcotics are held for purposes of sale based upon matters such as quantity, packaging, and the normal use of an individual. On the basis of such testimony convictions of possession for purposes of sale have been upheld." (Id. at p. 237.) However, the court distinguished such cases from the situation in which the officer testifies that a drug, which was lawfully prescribed, is being held unlawfully for purposes of sale: "In the heroin and marijuana situations, the officer experienced in the narcotics field is experienced with the habits of both those who possess for their own use and those who possess for sale because both groups are engaged in unlawful conduct. As to drugs that may be purchased by prescription, the officer may have experience with regard to unlawful sales but there is no reason to believe that he will have any substantial experience with the numerous citizens who lawfully purchase the drugs for their own use as medicine for illness." (Ibid.)

The court concluded: "In the absence of evidence of some circumstances not to be expected in connection with a patient lawfully using the drugs as medicine, an officer's opinion that possession of lawfully prescribed drugs is for purposes of sale is worthy of little or no weight and should not constitute substantial evidence sufficient to sustain the conviction." (Hunt, supra, 4 Cal.3d at p. 238.) Pointing out that no such special circumstances were shown as to the methedrine found in the blue and white travel case, the court explained: "Under [the officer's] own testimony, the use [of methedrine] by an individual could be up to 8 ccs. a day. The quantity in the blue and white travel case was less than 120 ccs. and could have been as little as a two-week supply. The street value seems immaterial. The fact that medicine purchased lawfully at reasonable prices may demand a much greater price in the illegal market furnishes no reason to suppose that a possession of a two-week supply of the drug pursuant to prescription is held for profit rather than use." (Ibid.)

In Chakos, supra, 158 Cal.App.4th 357, the Court of Appeal applied the reasoning of Hunt to a situation in which the defendant, a person entitled to possess marijuana under the Compassionate Use Act, was convicted of possession of marijuana for sale. (Id. at pp. 359-360.) Police conducted a search of the defendant's vehicle and found a plastic bag containing seven grams of marijuana, $781 in cash, and a doctor's note for lawful marijuana use. A subsequent search of the defendant's apartment uncovered nearly six ounces of marijuana (in various containers, and in irregular amounts), 99 empty plastic bags, and a digital scale. A closed-circuit camera system had also been installed to monitor the front door. (Id. at pp. 360-361.) Like Hunt, a law enforcement officer testified to his opinion that the drug was possessed for purposes of sale. (Id. at pp. 361-362.) "The officer was particularly impressed by the precise quantity of marijuana found in the car. He said that 'the amount that was found in the car, is not packaged for personal use. It's more consistent with what you would have to transport to sell to somebody with the money in the car.' In that regard he had stressed that 'drug dealers' use scales 'to measure out weights, amounts consistent with pricing, quarters, eighths, so they know that the customers are getting the right amount.'" (Id. at p. 361.) The officer also testified that "[o]ther factors included the presence of packaging material, the presence of a scale, and the presence of a surveillance camera system." (Id. at p. 362.)

The Court of Appeal held the evidence was insufficient to support the conviction because there was no substantial evidence that the officer was familiar with the patterns of individuals who may lawfully possess marijuana pursuant to the Compassionate Use Act, such that he could distinguish them from unlawful possession for sale. (Chakos, supra, 158 Cal.App.4th at pp. 368-369.) The court found the officer's lack of expertise to be revealed by his own testimony: "He laid great stress on the fact that about a quarter-ounce of marijuana was found in [the defendant's] backpack when he was arrested. And, of course, intuitively, such a precise amount would seem consistent with drug dealing, since it represents ease of packaging: take an ounce, divide by half, divide each of those halves by half." (Id. at p. 368.) However, the officer also testified that irregular amounts of marijuana were found in the defendant's apartment, from which "a reasonable trier of fact might infer that the irregular amounts of marijuana were inconsistent with dealing and were consistent with lawful use under the Compassionate Use Act." (Ibid.)

The court also posited that "individuals who may lawfully possess marijuana under state law for medicinal purposes will have patterns of purchase and holding that will reflect the practical difficulties in obtaining the drug. Those difficulties could also explain the gram scale -- anyone with the lawful right to possess marijuana will need to take precautions, not to ensure that he or she does not get 'ripped off' by a dealer, but that he or she does not possess more than the eight ounces contemplated by the [MMP]. Practical difficulties of obtaining the drug also explain why a patient entitled to possess it under state law might want to keep an extra supply on hand within the legal amount, since supplies would not be reliable." (Chakos, supra, 158 Cal.App.4th at p. 368.) Thus, because the considerations relied on by the officer to support his opinion that the marijuana was possessed for purposes of sale could also be consistent with lawful possession for medical purposes, and because the record failed to show that the officer was "any more familiar than the average layperson or the members of this court with the patterns of lawful possession for medicinal use that would allow him to differentiate them from unlawful possession for sale," the court found insufficient evidence to sustain the conviction. (Chakos, supra, 158 Cal.App.4th at pp. 368-369.)

In this case, unlike Hunt and Chakos, defendant was not convicted of possession of a controlled substance for purposes of sale. He was convicted of simple possession of more than 28.5 grams of marijuana. He stipulated to the fact that he possessed more than 28.5 grams of marijuana. And he also admitted to transporting this amount of marijuana to the airport. Accordingly, the only question is whether substantial evidence supports the jury's determination that this possession and transportation was unlawful, as opposed to authorized by the Compassionate Use Act.

Defendant asserts that because he presented evidence that he was a qualified patient under the Compassionate Use Act, had a marijuana recommendation from a physician, and possessed and transported the marijuana for personal medical purposes, he "raised a reasonable doubt as to the facts underlying his defense of compassionate use, thus negating the 'unlawfulness' element of possession under section 11357, and transportation under section 11360, rendering his conduct non-criminal." There is no dispute that defendant is a qualified patient with a doctor's recommendation for medical marijuana. However, as previously explained, whether he possessed and transported three pounds of marijuana for his "personal medical purposes" (§ 11362.5, subd. (d)), i.e., whether the amount, form and manner of possession and the method, timing and distance of the transportation were "reasonably related to [his] current medical needs" (Trippet, supra, 56 Cal.App.4th at p. 1549-1551), was a matter for the jury to decide. (People v. Windus, supra, 165 Cal.App.4th at p. 643; Frazier, supra, 128 Cal.App.4th at p. 824.)

The jury determined that possessing three pounds of marijuana at an international airport, packaged into three large bricks and another smaller package concealed in defendant's underwear, was not reasonably related to defendant's current medical needs. The jury also determined that transporting this amount of marijuana to the airport, where defendant intended to board a flight to New Orleans, was not reasonably related to his current medical needs.

Substantial evidence supports these determinations regardless of the fact that the People did not present expert testimony concerning the patterns of lawful possession of marijuana for medicinal use. The reason Hunt and Chakos require such expert testimony in cases of possession for sale is that circumstances indicating an intent to sell in situations where the substance is not lawfully possessed (e.g., a large quantity and the presence of a scale), may be entirely consistent with the lawful possession of the substance for medicinal purposes. Thus, unless there is evidence that is consistent only with an intent to sell (e.g., pay-owe sheets), the People must demonstrate that the officer has an adequate understanding of the patterns of lawful possession of the substance, such that he or she can distinguish them from unlawful possession for sale. The same problem does not exist in the context of determining whether an amount of marijuana, and the manner in which it is possessed and transported, is reasonably related to the patient's current medical needs.

Moreover, as previously explained, because the burden of proof as to the facts underlying the Compassionate Use Act defense resides with defendant, he was required to put forth sufficient evidence to raise a reasonable doubt as to whether his possession and transportation of three pounds of marijuana was reasonably related to his current medical needs. (See Mower, supra, 28 Cal.4th at p. 464.) On this issue, defendant testified that he preferred eating marijuana to smoking it, and his rate of consumption varied depending on his level of pain, from 13 grams on a good day to a quarter of a pound on a bad day. He testified that he was going to New Orleans for "two or three weeks." Defendant also submitted the recommendation of his doctor stating that any of his patients "may need" five pounds of marijuana per year. Finally, while defendant's medical marijuana expert was not a doctor and did not examine defendant, he did testify that "it takes three to five times as much cannabis when eaten to have the same effect as when smoked," that three pounds of marijuana is a "common [yearly] dosage," and that if the patient is eating the marijuana rather than smoking it, he or she would need "four times that amount." This expert also testified that three pounds of marijuana would reasonably be expected to last "two or three months" if most of it is eaten rather than smoked.

Based on defendant's testimony, if he stayed in New Orleans for three weeks and consumed 13 grams per day, he would need 273 grams, about one-fifth of the 1,370 grams he possessed. If each of those days was a "bad day," in which he consumed a quarter pound of marijuana, he would need about 2,384 grams, which is 5.25 pounds. However, the jury was not required to accept this as a reasonable amount of marijuana to consume over the course of three weeks, especially since defendant's own doctor recommended five pounds as a yearly dosage. Based on the doctor's recommendation, defendant would need 131 grams to last him three weeks, less than one-tenth of the 1,370 grams he possessed. Even if the jury accepted the expert's testimony, which they were not required to do, the amount of marijuana defendant tried to bring to New Orleans for a three-week trip would have lasted him two or three months. And while defendant testified that he planned to bring this amount of marijuana to New Orleans to have his ex-wife convert it into food so that he could return the food to California for medicinal use over a longer period of time, the jury was not required to believe him, or if they did believe him, conclude that such a plan was reasonably related to his current medical needs.

We conclude that substantial evidence supports the jury's determination that the amount of marijuana, and the manner in which it was possessed and transported, was not reasonably related to defendant's current medical needs.

V

Cumulative Error

Defendant further contends that the foregoing assertions of error, if not individually prejudicial, are cumulatively prejudicial, requiring reversal. Because the errors we have found are either manifestly harmless or affirmatively helpful to defendant, this claim of cumulative error must also fail.

VI

Probation Condition

We do agree that the probation condition preventing defendant from "knowingly associat[ing] with known or reputed users of marijuana, dangerous drugs or narcotics or knowingly be[ing] in places where narcotics or dangerous drugs are present," is unconstitutionally overbroad. This condition also conflicts with another condition allowing defendant to use and possess marijuana, dangerous drugs or narcotics if "lawfully prescribed for [him] by a licensed physician." We therefore remand the matter to the trial court for reconsideration of the challenged condition.

Trial courts possess broad discretion to devise reasonable conditions of probation in order to foster the reformation and rehabilitation of the probationer and to protect public safety. (Pen. Code, § 1203.1, subd. (j); In re Luis F. (2009) 177 Cal.App.4th 176, 188; People v. O'Neil (2008) 165 Cal.App.4th 1351, 1355.) "A condition of probation will not be held invalid unless it '(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . .' [Citation.] Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality." (People v. Lent (1975) 15 Cal.3d 481, 486, fn. omitted.)

An otherwise valid probation condition may infringe the constitutional rights of the probationer, who is "not entitled to the same degree of constitutional protection as other citizens." (People v. Peck (1996) 52 Cal.App.4th 351, 362; People v. Jungers (2005) 127 Cal.App.4th 698, 703.) However, such probation conditions must be reasonably related to the compelling public interests of rehabilitation and protection of the public. (People v. O'Neil, supra, 165 Cal.App.4th at p. 1356.)

In People v. Bianco (2001) 93 Cal.App.4th 748 (Bianco), we upheld a probation condition prohibiting a probationer, who possessed a doctor's recommendation for the medical use of marijuana, from using or possessing marijuana. (Id. at pp. 750, 753.) As we explained: "By imposing a condition of probation prohibiting defendant from the possession or use of marijuana, the trial court was in effect ordering defendant to obey the law of the United States. Thus, the probation condition was reasonably directed at defendant's future criminality." (Id. at p. 753.) The condition also survived a constitutional challenge because it was "closely related to the offense of which defendant was convicted [cultivating marijuana] and it serves the interests of reformation and rehabilitation by precluding future criminal conduct." (Id. at p. 755.)

The challenged probation condition in this case prohibits defendant from "knowingly associat[ing] with known or reputed users of marijuana." This portion of the condition in effect orders defendant to refrain from associating with individuals who are known or reputed to be violating federal law. While associating with such individuals is not itself criminal, either under California or federal law, preventing these associations is reasonably related to defendant's crimes and future criminality. (See People v. Lent, supra, 15 Cal.3d at p. 486.) Associating with marijuana users, even those who are lawfully using the drug under California law, makes it more likely that defendant will use the drug. And even though defendant possesses a physician's recommendation, using marijuana is still a federal crime. Nor does this portion of the condition amount to an unconstitutional restriction of defendant's freedom of association because preventing defendant from associating with marijuana users reasonably relates to the compelling public interest of rehabilitation by making it more difficult for him to violate federal law. (See People v. O'Neil, supra, 165 Cal.App.4th at p. 1356.)

However, while not unconstitutional, it is unclear whether the trial court intended to prevent defendant from associating with individuals who are lawfully using marijuana under California law. Indeed, unlike Bianco, supra, 93 Cal.App.4th 748, where the defendant was prevented from using marijuana despite a doctor's recommendation, here, defendant's probation order allows him to use and possess marijuana if "lawfully prescribed for [him] by a licensed physician." Because marijuana is not prescribed under the Compassionate Use Act, but rather recommended or approved by a physician, we assume this is what the trial court meant by "prescribed." It seems inconsistent to allow defendant to use or possess medical marijuana with a valid recommendation or approval, but prevent him from associating with others who are doing the same.

The challenged condition also prohibits defendant from "knowingly associat[ing] with known or reputed users of . . . dangerous drugs or narcotics or knowingly be[ing] in places where narcotics or dangerous drugs are present." While taking a narcotic with a valid prescription is not a crime under California or federal law, this language would prohibit defendant from associating with an individual who is doing just that. It would also prohibit defendant from going to a hospital, clinic, pharmacy, dentist's office, or veterinary hospital, since these are places where narcotics or dangerous drugs are present. Prohibiting defendant from associating with law-abiding citizens and being in places where prescription drugs are lawfully present is not reasonably related to his crime or future criminality. Nor is it reasonably related to the compelling public interests of rehabilitation or protection of the public. Accordingly, this language is unconstitutionally overbroad.

Because a portion of the challenged probation condition is unconstitutionally overbroad, while another portion of the condition is constitutionally valid but it is unclear what the trial court intended, we decline to modify the condition ourselves. Instead, we remand the matter to the trial court with directions to reconsider the challenged condition and modify it in accordance with the views expressed in this opinion. We also direct the trial court to modify the probation condition prohibiting defendant from using or possessing marijuana unless "prescribed" by a licensed physician to prohibit such behavior unless "recommended or approved" by a licensed physician.

VII

Senate Bill No. 1449

Defendant further claims entitlement to retroactive application of Senate Bill No. 1449 (Stats. 2010, ch. 708, § 1), which became effective January 1, 2011, and amended section 11357, subdivision (b), to make the offense of possessing not more than 28.5 grams of marijuana an infraction rather than a misdemeanor. However, as previously explained, defendant was convicted of possessing more than 28.5 grams of marijuana in violation of section 11357, subdivision (c), which remains a misdemeanor following the amendment. Thus, retroactive application of Senate Bill No. 1449 does not benefit defendant.

VIII

Custody Credits

Finally, we conclude the recent amendments to the statutes involving custody credits apply to defendant's appeal. (See In re Estrada (1965) 63 Cal.2d 740, 745 [amendment to statute lessening punishment for crime applies "to acts committed before its passage provided the judgment convicting the defendant of the act is not final"]; People v. Doganiere (1978) 86 Cal.App.3d 237 [applying Estrada to amendment involving conduct credits]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying the rule of Estrada to amendment allowing award of custody credits].) The record on appeal does not reflect that defendant is among the prisoners excepted from the additional accrual of credit pursuant to former Penal Code section 4019. (Pen. Code, § 4019, subds. (b)(2), (c)(2), as amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.) However, because defendant was not sentenced to state prison, he is not entitled to the additional accrual of credit pursuant to Penal Code section 2933. (Pen. Code, § 2933, subd. (e)(1), as amended by Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010.) Consequently, defendant, having served a total of 33 actual days, is entitled to 32 conduct days, for a total of 65 days of custody credit.

DISPOSITION

The judgment of conviction is affirmed. The matter is remanded to the trial court for the limited purpose of reconsidering the following probation condition: "Defendant [shall] not knowingly associate with known or reputed users of marijuana, dangerous drugs or narcotics or knowingly be in places where narcotics or dangerous drugs are present." The trial court shall also modify the following probation condition: "Defendant [shall] not knowingly use, handle or have in his possession marijuana, narcotics, dangerous drugs or controlled substances of any kind unless lawfully prescribed for defendant by a licensed physician." The modification shall allow defendant to use, handle or have in his possession marijuana if "lawfully recommended or approved for the defendant by a licensed physician." Finally, the trial court shall modify the probation order to reflect that defendant was convicted of violating Health and Safety Code section 11357, subdivision (c), a misdemeanor, and shall further modify the probation order to reflect defendant's entitlement to a total of 65 days of custody credit (33 actual days plus 32 days of conduct credit). The trial court is directed to prepare an amended order granting probation and to forward a certified copy to defendant and the probation department.

We concur: HULL , Acting P. J. BUTZ , J.


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