IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
November 8, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
PAULA LOUISE BROWN, DEFENDANT AND APPELLANT.
(Super. Ct. No. 07F11491)
The opinion of the court was delivered by: Nicholson , Acting P. J.
P. v. Brown
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Paula Louise Brown appeals her conviction for possession of marijuana for sale. (Health & Saf. Code, § 11359; further undesignated statutory references are to the Health and Safety Code.) She contends (1) there was insufficient evidence supporting her conviction because the prosecution did not establish that she intended to sell marijuana for profit; (2) the court misinstructed the jury on the elements of the offense, leaving out a for-profit element; (3) the court failed to instruct on mistake of law as an affirmative defense; (4) the court failed to give a unanimity instruction; and (5) should any of the arguments regarding instructions be deemed forfeited for failure to object or request a specific instruction, then she received ineffective assistance of counsel. Finding no merit in defendant's contentions, we affirm.
While conducting a lawful search of defendant's home, officers found numerous marijuana plants, marijuana-laced baked goods, and indicia of sales throughout the home.
In the garage, they found 45 marijuana seedling plants weighing 85.6 grams and three grow lights. In the backyard, they found 28 marijuana plants weighing a total of 22 pounds. In the kitchen, there were baking utensils with finely sifted powder residue that smelled like marijuana and a mixing bowl with 70 grams of marijuana in it. There was also cookie and brownie dough in the refrigerator/freezer and 3,114 grams of suspected marijuana butter.
In the living room, they found a variety of baked goods, including 40 green Rice Krispy treats, 24 cookies, and 29 brownies suspected of containing marijuana. There were also 256 grams of loose marijuana on the table and another 239 grams of marijuana in a cardboard box. Many of the baked goods were individually wrapped and labeled.
In addition to the marijuana and marijuana-laced baked goods, there was a variety of paperwork found in the living room amongst papers with defendant's name. This paperwork included an order form for "Cookey's Spectacular Munchies," a price sheet and invoice, and a distributor agreement. The invoice listed a variety of baked items, including chocolate chip cookies, brownies, and Rice Krispy treats. One document had numbers, prices, and totals filled in, an address, and the notation "billed." Another document stated that "Cookey's Spectacular Munchies will be mailing all deliveries of treats due to high volume of clients orders. Please send payments in a timely manner to ensure on time regular deliveries." It also indicated orders could be specially made and "[t]here is also a super batch for those with a high tolerance. This batch will be double in cost, and must be ordered as a half order minimum, no exceptions." The document went on to indicate there was a $30 minimum order and $10 shipping charges "to every order regardless of the amount."
The documents also stated that new clients were required to provide a signed copy of a verification agreement. The price sheet also assured the customers that Cookey's Spectacular Munchies followed Proposition 215 and section 11362.5, and that under California law the customers had the right to obtain and use marijuana for medical purposes.
There was also a wholesale price list with handwritten notations and reductions in prices. The notes said, "[p]rices are only for Shan . . . . The crossed out prices are what is sold to stores in quantity of 50 treats or more. [¶] They then sell the treats at double that amount, so banana bread and carrot cake, the stores sell at $15. Brownies are ten and all other treats are $8. . . . [¶] . . . To my regular customers, slash, clients, slash, patients, I sell everything at $5 each. But as you can see, I am not only lowering the wholesale prices for you, I am also throwing in extras just for you to make something. . . . [¶] . . . I would recommend that you sell [the] top three for $10, and the rest for $6."
Deputies also found defendant's MediCann card*fn1 and a doctor's recommendation for medical marijuana.
Detective Brad Rose testified as an expert on marijuana. He contrasted cannabis clubs, marijuana cooperatives, and marijuana collectives. A cannabis club operates as a for-profit business. A marijuana cooperative is a joint venture among marijuana growers to grow and dispense marijuana exclusively among its members. And a marijuana collective is a joint venture that sells marijuana grown by its members. He explained a single marijuana plant could yield as much as $5,000 worth of saleable product and an ounce of marijuana could sell for as much as $300. Relying on "the bake sale price guide, the information on shipping," the surveillance camera monitoring the entrance to the home, and the use of lower quality marijuana shake*fn2 in the baked goods, Rose opined the marijuana contained in the baked goods was possessed with the purpose of distribution through sales for profit. Defendant's possession of a MediCann card did not alter this conclusion.
Defendant had obtained a physician's recommendation to use marijuana in February 2005, to address a host of physical ailments. She began baking with marijuana in June 2005 and trying to grow marijuana at her home. Her first attempt failed after she had spent $3,000 in start up costs. Her electrical bills had also increased by about double when growing marijuana.
At various times prior to the instant search, officers searched defendant's home, found marijuana, and did not take any further law enforcement action. In October 2005, officers from the Elk Grove Police Department responded to a complaint about defendant growing marijuana. They saw approximately 29 marijuana plants growing in the backyard and goods baked with marijuana in the kitchen. She showed the officers her medical marijuana paperwork, and medical marijuana recommendations for her two sons, one son's girlfriend, and her cousin, Harold. At the time, she was the caretaker for Harold and her sons. Officers concluded she was complying with state guidelines, but cautioned her that marijuana was illegal under federal law. Officers visited her home in Elk Grove at least eight times. Each time, they looked around and left without seizing any property or arresting her.
In 2006, she moved to Sacramento and began growing marijuana at her new home. After a theft of some of her plants and damage to her son's car, she installed surveillance equipment at the house. She also obtained a seller's permit, but learned later that marijuana sales were not legally permitted. She began sending sample products to clubs and wanted to start her own business selling "regular" baked goods. She sold those regular goods at a stand in front of Wal-Mart.
In January 2006, a Sacramento County sheriff's deputy was investigating the homicide of a student who had been distributing "bomb banana bread" at school. He identified defendant as a possible source of the bread and went to her home. While there, he did not see any loose marijuana or growing plants. Defendant did, however, show him a number of baked marijuana products. The officers returned for a second visit to defendant's home in February. Defendant told them she sold marijuana baked goods to a number of cannabis clubs. She told them she had sold "bomb banana bread" as recently as earlier that month for $5 to $7.50 per loaf and the clubs resold it for $10 to $15 per loaf. Defendant believed she was in compliance with the medical marijuana law and was helping people who were in pain.
Four days before the instant search, probation officers conducted a search of defendant's home, pursuant to her sons' probation conditions. During the probation search, they found marijuana in the bedroom of one of defendant's sons. They also saw marijuana plants growing in the backyard but did not determine the number of plants because two pit bull dogs were in the yard. Officers estimated there were 10 marijuana seedling plants in the garage. Defendant showed the officer her MediCann card and medical marijuana recommendation. She told him she baked using the marijuana and sold the products to hospice patients.
In August 2007, defendant was using marijuana regularly. She would smoke between three to nine puffs from a joint. She obtained the marijuana she smoked from cannabis clubs, not her own grow. She understood qualified people were allowed to share marijuana and that selling marijuana for profit was illegal under the medical marijuana law. Defendant denied making any profit on the sale of marijuana or marijuana products.
Defendant was charged with cultivation of marijuana (§ 11358 -- count one), possession of marijuana for sale (§ 11359 -- count two) and manufacturing a controlled substance (§ 11379.6, subd. (a) -- count three). The manufacturing charge was dismissed on the prosecution's motion before the matter was submitted to the jury. The jury found defendant guilty of possessing marijuana for sale. The jury was unable to reach a verdict on cultivating marijuana, and the court declared a mistrial on this count.
The court suspended imposition of sentence and granted defendant five years' formal probation. Defendant was ordered to serve 240 days in custody and to pay a $400 restitution fund fine and various other fines and fees.
Defendant contends there was insufficient evidence to support her conviction of possession of marijuana for sale. She bases this contention on her argument that the prosecution must establish, as an element of the crime of possession of marijuana for sale, that she possessed the marijuana not only for sale but to make a profit. The argument is without merit because the "for profit" provision of section 11362.765 is a limitation on an affirmative defense, not an additional element of the crime. Because this argument fails, so does her contention that there was insufficient evidence of possession of marijuana for sale.
"Every person who possesses for sale any marijuana, except as otherwise provided by law, shall be punished by imprisonment in the state prison." (§ 11359.) However, consistent with the provisions of both the Compassionate Use Act of 1996 (CUA) and the Medical Marijuana Program (MMP), section 11362.765 provides an affirmative defense to possession with intent to sell under section 11359. (People v. Kelly (2010) 47 Cal.4th 1008, 1012-1014; People v. Mentch (2008) 45 Cal.4th 274, 290; People v. Wright (2006) 40 Cal.4th 81, 90, 93-94.)
Defendant relies on the language in section 11362.765, subdivision (a), which provides that specified individuals "shall not be subject, on that sole basis, to criminal liability under Section . . . 11359. . . . However, nothing in this section shall authorize . . . any individual or group to cultivate or distribute marijuana for profit." (Italics added.) Citing the italicized language, defendant attempts to engraft upon section 11359 the additional element that a qualified individual possessed marijuana with the intent to sell the marijuana for profit.
Section 11362.765 does not add elements to section 11359. Nothing in the statute itself or the statutory scheme suggests it was intended to do so. Instead, section 11362.765 provides an affirmative defense to various charges, including possession with intent to sell under section 11359. (People v. Kelly, supra, 47 Cal.4th at pp. 1013-1014.)
Contrary to defendant's argument, such an interpretation of the statute does not render the words "for profit" surplusage. The words "for profit" serve as a further limitation on the availability of section 11362.765 as a defense. That is, even if the defendant is one of the specified individuals and has engaged in the immunized range of conduct, that conduct is only protected under the MMP if the defendant has also not cultivated or distributed marijuana for profit. Section 11362.765 does not mean a defendant cannot "be charged with cultivation or possession for sale on any basis; to the extent [s]he went beyond the immunized range of conduct, . . . [s]he would, once again, subject [her]self to the full force of the criminal law." (People v. Mentch, supra, 45 Cal.4th at p. 292.)
As a "limited affirmative defense, the burden is . . . on the defendant to raise this defense and prove its elements." (People v. Trippet (1997) 56 Cal.App.4th 1532, 1551, fn. 17, cited with approval in People v. Wright, supra, 40 Cal.4th at p. 96.) Because it is defendant's burden to prove the elements of the affirmative defense, it was not the prosecution's burden to establish that defendant possessed the marijuana with the intent to sell it for profit. Therefore, defendant's contention that the evidence was insufficient because the prosecution did not establish that she intended to profit from the sale of the marijuana is without merit.
Defendant next contends that the court prejudicially erred in instructing the jury on the elements of possession of marijuana for sale because it did not include the element of intent to sell marijuana for profit. This argument fails for the reasons set forth above. Intent to sell for profit is not an element of the offense. Rather, the "for profit" language of section 11362.765 is a further limitation on the affirmative defense available under the MMP.
Defendant contends the trial court erred in instructing the jury that her belief that her possession of the marijuana was lawful is not a defense to the crime. Defendant claims that mistake of law is an affirmative defense to possession of marijuana for sale because such possession is a specific intent crime. While we agree that possession of marijuana for sale is a specific intent crime, mistake of law is not a defense because a belief that the possession is lawful does not negate the requisite intent to sell.
The court instructed the jury: "It is not a defense to the crime[s]  charged that the defendant did not know she was breaking the law or that she believed her act was lawful."
"[A] trial court's duty to instruct, sua sponte, or on its own initiative, on particular defenses . . . aris[es] 'only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.' [Citations.]" (People v. Barton (1995) 12 Cal.4th 186, 195.) "'A "mistake of law" is where a person knows the facts as they really are, but has a mistaken belief as to the legal consequences of those facts.' [Citations.]" (People v. LaMarr (1942) 20 Cal.2d 705, 710.) In general, ignorance of the law, i.e., lack of knowledge that one's conduct is against the law, does not excuse criminal conduct and is not a defense. (People v. O'Brien (1892) 96 Cal. 171, 176; People v. Cole (2007) 156 Cal.App.4th 452, 483.)
An honest or good faith mistake of law does not negate general intent and is therefore not a defense to a general intent crime. Such a mistake of law may, however, be a defense to a specific intent crime, but only "if the mistake negates the specific intent required for the offense. [Citations.]" (People v. Howard (1984) 36 Cal.3d 852, 862-863.) "[T]he law recognizes honest purpose, not dishonest ignorance of the law, as a defense to a charge of committing a crime requiring 'specific intent.'" (People v. Smith (1966) 63 Cal.2d 779, 793.) Defendant contends that her mistaken belief that she was in compliance with the CUA and the MMP entitled her to an instruction on a good faith mistake of law. It did not.
The elements of possession of marijuana for sale are (1) defendant possessed a useable amount of marijuana, (2) she knew of its presence and character as a controlled substance, and (3) she possessed the marijuana with the intent to sell it. (CALCRIM No. 2352.) Defendant's claimed mistaken understanding of the facts legally required to sustain a defense under the CUA or the MMP does not negate any element of the offense of possession for sale, including the specific intent element. That is, her belief that she could lawfully sell marijuana as long as she did not make a profit did not negate her possession of a controlled substance, her knowledge of its nature and presence, or her intention to sell it. Accordingly, such a mistake does not provide a defense to the charge of possession of marijuana with intent to sell. (See People v. Urziceanu (2005) 132 Cal.App.4th 747, 776 [defendant's good faith belief that his marijuana operation met the terms of the CUA is not a defense to the charge of selling marijuana].)
Defendant's reliance on Urziceanu to support the proposition that a good faith mistake under the CUA or the MMP negates the specific intent element of unlawful possession for sale is misplaced. In Urziceanu, the defendant was convicted of conspiracy to sell marijuana. One of the defendant's primary arguments was that the CUA and the MMP provided him with a defense and the trial court should have instructed the jury on his defenses of mistake of law. This court concluded there was evidence that supported the defendant's good faith mistake of law, which, although not a defense to the crime of selling marijuana, was a defense to the conspiracy to commit that crime. (People v. Urziceanu, supra, 132 Cal.App.4th at pp. 766, 774-779.)
Conspiracy requires proof of a specific intent to commit an unlawful act. Therefore, a good faith mistake of law negates that specific intent. (People v. Urziceanu, supra, 132 Cal.App.4th at pp. 778-779.) Possession of marijuana for sale does not require the specific intent to commit an unlawful act; it requires only the specific intent to sell marijuana. A good faith mistake of law does not negate this intent. Defendant's conclusion she was protected under the CUA or the MMP "was a misapprehension of the law that does not provide [her] with a defense." (People v. Young (2001) 92 Cal.App.4th 229, 237.) The trial court committed no error by not giving a mistake of law instruction.
Defendant next contends that the trial court prejudicially erred in failing to give a unanimity instruction because there were two "very distinct sources of marijuana -- distinct in character, location and purpose." Defendant relies on People v. King (1991) 231 Cal.App.3d 493 (King) to support her contention that "[s]ome jurors easily could have believed the outdoor plants were the marijuana [defendant] possessed for sale, while concluding the baked goods were possessed for [defendant's] personal use and the personal use of the other four cardholders. Other jurors could have believed exactly the opposite. Based on the evidence in this case, there is no assurance jurors unanimously reached a verdict." We disagree.
"[I]n a prosecution for possession of narcotics for sale, where actual or constructive possession is based on two or more individual units of contraband reasonably distinguishable by a separation in time and/or space and there is evidence as to each unit from which a reasonable jury could find that it was solely possessed by a person or persons other than the defendant, absent an election by the People, [a unanimity instruction] must be given to assure jury unanimity." (King, supra, 231 Cal.App.3d at pp. 501-502.) Among the factors to be considered in determining whether a unanimity instruction is necessary are whether the defendant raised separate defenses to different units of narcotics and whether there is conflicting evidence of ownership. (People v. Castaneda (1997) 55 Cal.App.4th 1067, 1070-1071.)
In King, the defendant was convicted of possession for sale where methamphetamine was found in various locations inside a home, including inside another woman's purse. There was evidence that the home was occupied by more than one person, and the defendant's boyfriend testified that some of the drugs belonged to him, although he denied ownership of the scales, pay/owe sheets, and cutting agents that were found in the house. (King, supra, 231 Cal.App.3d at pp. 497-500.) Because the evidence was such that a reasonable jury could have found that each unit of drugs "was solely possessed by a person or persons other than the defendant," the court held that in the absence of an election by the prosecutor, a unanimity instruction should have been given. (Id. at pp. 501-502.)
Here, there was no requirement that a unanimity instruction be given. There was no evidence from which the jury could find the outdoor plants or the marijuana baked goods were solely possessed by a person other than defendant. While there was evidence that a number of qualified patients lived in the home, there was no conflicting evidence of ownership of the plants or baked goods. There was no evidence at all indicating anyone other than defendant possessed the plants or the baked goods. Further, defendant presented the same defense as to the plants and the baked goods. That is, that she reasonably believed she was acting in compliance with the CUA and the MMP. Because there was no conflicting evidence of ownership or distinctive defenses offered, there was no error in not giving a unanimity instruction.
Defendant's last claim is that if we find arguments two, three or four forfeited, she received ineffective assistance of counsel. Because we have not relied on a forfeiture argument in rejecting defendant's argument, we need not discuss defendant's effective-assistance-of-counsel claim.
The judgment is affirmed.
We concur: BUTZ , J. MAURO , J.