California Court of Appeals, Fourth District, Third Division
Appeal from a judgment of the Superior Court of Orange County, No. 10HF1852 David A. Hoffer, Judge.
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Law Office of Scott C. Thomas, Scott C. Thomas; Law Offices of Glew & Kim and Christopher Glew; for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Kimberley A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.
MOORE, ACTING P. J.
Defendant, a founding member of a medical marijuana cooperative, was charged with a sale of marijuana (Health & Saf. Code, § 11360, subd. (a); all further undesignated statutory references are to this code) and possession of marijuana for sale (§ 11359). The first jury was unable to reach a verdict, splitting six to six on the sales charge and nine to three for not guilty on the possession for sale charge. Defendant was permitted a defense under the Medical Marijuana Program Act (MMPA; § 11362.7 et seq.) in that trial. On retrial, he was denied the defense. The second jury was still unable to reach a verdict on the sales charge, but convicted defendant of possessing marijuana for sale. Because we find he was entitled to a defense under the MMPA and the error in precluding the defense was prejudicial, we reverse.
FACTS AND PROCEDURE
A. Procedural Background
Defendant was charged in an information with a sale of marijuana on March 23, 2010 (§ 11360, subd. (a); count one) and possession of marijuana for sale on April 7, 2010 (§ 11359; count two). His defense was that he had a physician’s recommendation to use medical marijuana, he ran a medical marijuana cooperative in compliance with the MMPA, he was not present on the date of the sale, and the sale was made by a person who did not comply with the protocol of the cooperative. As noted above, the first jury hung six to six on the sales count and nine to three for not guilty on the possession for sale count.
In the second trial, the court held defendant was not entitled to a defense under the MMPA. The second jury was unable to reach a verdict on count
one and found defendant guilty on count two, possession of marijuana for sale. The court placed defendant on three years of formal probation and imposed various fines, fees, and conditions. The court expressly authorized defendant’s continued use of medical marijuana due to his medical condition. Count one was then dismissed on the People’s motion.
1. Prosecution Evidence
In March 2010, Elijah Hayward worked as an undercover narcotics detective with the Newport Beach Police Department. Using a fake name and driver’s license, he visited a physician and obtained a recommendation to use medical marijuana.
On March 23, 2010, Hayward went to a two-story business building located on Campus Drive, based on information a marijuana dispensary was located there. He went to an office on the second floor. On the door was a sign that stated, “by appointment only.” Hayward knocked and saw someone peek through the blinds. A male in his 20’s, with dark hair and an olive complexion answered the door. The male said his name was Sean, and invited Hayward in. Sean directed Hayward to a small waiting room and asked for his identification and physician’s recommendation, which Hayward then gave him. Sean left and entered another room. After Hayward heard what sounded like a copying machine, Sean reappeared in the waiting room, returned the identification and recommendation to Hayward, and gave him a two-page membership application for Herbal Run Marijuana Collective (Herbal Run). Hayward signed the application and gave it back to Sean. Sean took the signed membership application back into the same room he had taken Hayward’s identification and recommendation.
When Sean returned, he showed Hayward into another room. This one contained a countertop and two refrigerators with clear, glass doors. There were a number of jars of marijuana on display and a dry erase board on the wall. Hayward said the board contained the names of different strains of marijuana and their prices. Hayward told Sean he wanted an eighth of an ounce of one of the strains. Sean weighed it out and Hayward paid him $60. Sean placed the container of marijuana in a bag and gave Hayward a marijuana cigarette and a small brownie, neither of which had Hayward requested.
On April 7, 2010, Officer Brian Mack of the Newport Beach Police Department was dispatched to the same location on Campus Drive based on
reports of the smell of burnt marijuana at the location. Mack too smelled burnt marijuana. Mack knocked on the door and the smell of burnt marijuana got stronger when defendant answered the door. Mack explained why he was there and defendant said he had a marijuana recommendation permitting him to smoke marijuana.
Mack entered the office and asked defendant what business was run at the location. Defendant said he operates a property management and real estate investment company, Advantage. He added he also runs a marijuana dispensary in Costa ...