(Super. Ct. No. 12F00948)
The opinion of the court was delivered by: Raye , P. 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Twenty-six-year-old Ronald Nivison's sole defense at his trial for possession of six and one-half pounds of marijuana for sale was that he grew and packaged it for medicinal purposes for himself and his father, both of whom had medical marijuana identification cards, and he had no intent to sell it. On appeal, he contends the trial court, as well as his own lawyer, wrongly concluded that the Medical Marijuana Program (Health & Saf. Code, § 11362.7 et seq.) did not provide a defense to possession for sale. Thus, he contends the jury was not properly instructed, he was denied his constitutional right to competent counsel, and he is entitled to a reversal. We disagree and affirm the judgment.
In February 2012 defendant was on probation for commercial (second degree) burglary and unemployed. He testified he smoked about 10 joints of marijuana a day to mitigate his chronic back and elbow pain, migraine headaches, and insomnia. Without a job, he could not afford to buy his marijuana, so he had planted 12 marijuana plants in the spring of 2011 and began harvesting the ones that survived later that fall; he "pulled the last plant out of the ground" in December. He lived in a small trailer parked in his father's backyard.
A deputy sheriff conducted a probation search of the trailer on February 2, 2012. He found a plastic Tupperware storage tub containing approximately 1,300 grams of marijuana, and 19 bags of marijuana, some of which were "Ziplock" bags, some of which were "biohazard" bags, and some of which were garbage-type bags. Some of the bags were labeled with the strain of marijuana they contained. Others were labeled with quantities that are typically sold on the street, but the actual weight of the marijuana did not correspond to the labels. The total weight of all the marijuana inside the trailer was 2,950.85 grams, or approximately six and one-half pounds.
The deputy also found tare weights used for calibrating a scale, along with all of the packaging materials. In the bathroom located two or three steps from the packaging area, he confiscated a shotgun and a rifle, both loaded. He opined that based on the volume of marijuana, coupled with the tare weights, packaging, and guns, defendant possessed the marijuana primarily for sale.
The deputy did not find any of the other accoutrements typical of a sales operation, such as a cell phone, scale, pay-owe sheets, or cash. There had been no reports of foot traffic to and from the trailer. Nevertheless, he explained to the jury that the marijuana, like lettuce or broccoli, would degrade over time. The marijuana he found in the trailer would have lasted only four to six months because of the way in which it was packaged.
The prosecutor played two tape recordings of defendant talking to his girlfriend and to an unidentified male during jail visits. In the first, defendant asked his girlfriend to tell his father to upgrade his "prop 215" card to allow him to have more than eight ounces of marijuana in his possession. In the second, he maligned the state of California for paying half of the cost of medical marijuana through Medi-Cal. Laughing, he declared that when he was released he was going to get "so fucking stoned it ain't even gonna be funny man."
But defendant told the jury he did not intend to sell the marijuana he cultivated. He grew what he hoped would last a year. The deputy sheriff testified that an average user smokes between 6 and 8 grams of marijuana a day. If one individual were to consume 8 grams of marijuana a day, the marijuana found in the trailer would last for 368.8 days. But defendant testified that he planned to share it with his father.
Defendant also explained the presence of the tare weights and the biohazard baggies. On occasion, he purchased the contents of storage units, and in one of the units he found the tare weights he later used to weigh down the branches of his marijuana plants. He obtained the biohazard, or "medical," bags from a house he was employed to clean out.
The jury found defendant guilty of possession of marijuana for sale while armed with a firearm. (Health & Saf. Code, § 11359; Pen. Code, § ...