(Super. Ct. No. 08F09930)
The opinion of the court was delivered by: Hoch , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
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.
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.
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.
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 ...