APPEAL from a judgment of the Superior Court of Nevada County, Candace S. Heidelberger, Judge. Reversed with directions. (Super. Ct. No. SF09-079A)
The opinion of the court was delivered by: Nicholson , J.
CERTIFIED FOR PUBLICATION
Where, as here, the jurors do not rely on extraneous materials or evidence, or conduct an improper experiment, is it misconduct for them to reject and correct what appeared to the jurors to be an expert's formulaic miscalculation of the anticipated yield of an indoor marijuana garden? The trial court answered "yes", and granted defendant Eric Anthony Engstrom's motion for a new trial based on juror misconduct. We disagree.
Defendant was charged with possession of marijuana for sale (Health & Saf. Code, § 11359) and cultivation of marijuana (Health & Saf. Code, § 11358), with enhancements for being armed in the commission of both offenses (Pen. Code, § 12022, subd. (a)(1)). A jury found defendant not guilty of possession for sale, found him guilty of the cultivation charge, and concluded the firearm allegation was not true.
The trial court granted defendant's motion for a new trial based on juror misconduct. The People appeal the trial court's order granting a new trial, contending the ruling is based on mere evidentiary errors and not juror misconduct. We reverse the trial court's order.
On February 20, 2009, officers from the Nevada County Narcotics Task Force executed a search warrant on defendant's home. Officers found a sophisticated marijuana growing operation in the basement with 75 marijuana plants in three U-shaped tubes, each tube containing 25 plants.
The plants were about 18 to 24 inches tall and healthy, but had not produced any cola.*fn1 The area of the marijuana grow was 120 square feet. The grow room had an irrigation timer, a supply of carbon monoxide, overhead retractable lighting, vents, oscillating fans, a thermostat monitoring humidity levels, and a charcoal filter to eliminate odors. An adjacent room held six female marijuana plants which could be cloned to make new plants. The room also had an area for drying, trimming, and processing marijuana.
In the course of the search, the officers found three out-of-date medical marijuana recommendations issued to defendant, with the most recent authorizing him to use up to two ounces of marijuana a week.*fn2 There was an undated growers certificate from the Oakland Cannabis Buyers' Cooperative posted in the grow area indicating the crop was grown for personal medical use.
The master bedroom contained a digital scale in the closet and a loaded .357-caliber Ruger revolver in defendant's top dresser drawer. There were two envelopes in the dresser, one with $14,450 in cash and another with $950 in cash. Two more envelopes, containing, respectively, $333.70 and $1,190 in cash, were in a second dresser.
Nevada County Sheriff's Sergeant William Smethers testified that an average yield for an indoor marijuana plant was one-quarter to one-half a pound of cola. Indoor marijuana plants could be harvested more than once a year, with a 90- to 120-day cycle presenting the highest yield. In his expert opinion, the money seized was the proceeds of illegal drug trafficking, and defendant was selling marijuana.
Officers seized a total of 1,141.11 grams*fn3 of marijuana cola in six separate bags or containers. They also found 642.30 grams of marijuana kief.*fn4
The Nevada County guidelines permit a qualified medical marijuana patient to possess up to two pounds of marijuana cola with a physician's recommendation, or more, if the physician prescribes a larger quantity. The guidelines limit a patient to 75 square feet of marijuana canopy.*fn5 They allow six mature plants or 12 immature plants. An immature plant is not fully flowering or budding out, and thus has nothing useable. The plants in defendant's grow area were just starting to flower, so they were not yet mature.
In December 2005, Nevada County Deputy Sheriff Jesse King inspected defendant's home for marijuana. There were 28 plants growing indoors and three medical recommendations were posted. The operation appeared legal and an informational report was written.
Dr. Stephen Bannister treated defendant since 1999 for persistent and chronic conditions treatable with marijuana. He would see defendant approximately once a year and renewed the recommendations as appropriate. He had not seen defendant for over a year before the February 20, 2009, search. However, defendant saw the physician's assistant four days after the search and got a new recommendation for medical marijuana. Dr. Bannister would have renewed the medical marijuana recommendation if defendant had sought one before the search.
Mona Colomb worked in defendant's restaurant as a waitress and manager. They began a relationship, and she was living with him at the time of the search. The business was failing in November of 2008, so the accountant recommended defendant put aside cash from the business to pay critical expenses. Defendant first kept the cash in the business safe until the restaurant closed in early 2009, and he took the cash home. Colomb also had cash in two envelopes ...