APPEAL from a judgment of the Superior Court of Tuolumne County No. CRF36522, James A. Boscoe, Judge.
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Ean Vizzi and Amanda Millea for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Kathleen A. McKenna, Deputy Attorney General, for Plaintiff and Respondent.
Defendant Jerry Trent Anderson was convicted of one count of cultivating marijuana. His contentions in this appeal are: (1) the court failed to instruct the jury correctly on Anderson’s defense under the medical marijuana laws; and (2) evidence of the marijuana should have been excluded, and the information dismissed, because the police did not adhere to statutory evidence-preservation requirements when they destroyed all but some samples of the plants they seized from Anderson’s property.
We agree with the first argument and will reverse. The jury instructions failed to explain clearly the defense potentially available to Anderson under Health and Safety Code section 11362.775, which legalizes the operation of cooperatives and collectives for cultivation of marijuana by groups of patients. Specifically, the instructions did not make it clear that a lawful cooperative or collective can consist of some patient members who grow marijuana and other patient members who compensate the growers with money in exchange for marijuana. In light of the evidence, the arguments made to the jury by counsel, and the fact that there was a splintered verdict (consisting of a conviction on one count, an acquittal on another, and a hung
jury on a third), we conclude it is reasonably probable that this deficiency in the instructions confused the jury and affected the outcome.
We reject the second argument. Anderson has failed to show that any error in the evidence-preservation procedures was prejudicial.
FACTS AND PROCEDURAL HISTORY
In 2011, Detective Eric Erhardt of the Tuolumne County Sheriff’s Office was investigating a marijuana dispensary called Foothill Care Collective. The sheriff’s department raided the dispensary on May 25, 2011, and closed it. The dispensary’s principals were convicted of offenses pursuant to plea agreements. In the course of the investigation, Detective Erhardt found business records indicating that Anderson sold marijuana with a value of $3, 000 through the dispensary on consignment in 2010 and 2011. The sheriff’s department conducted aerial surveillance of Anderson’s property and saw marijuana growing there.
On August 23, 2011, deputies searched Anderson’s property pursuant to a search warrant. They removed 187 growing marijuana plants from the ground. Inside the house, they found concentrated cannabis in powder and liquid forms, some rolled marijuana cigarettes, and about 25 bags and jars each containing about an ounce of dried marijuana. One room contained a “grow light” and some rings where pots apparently had been, indicating that the marijuana plants might have been started there. Also found were approximately $50 in cash on the kitchen table and $970 in cash in Anderson’s pocket. Three loaded handguns were found in the bedroom, as well as a shotgun and two rifles. Two more rifles were in a closet in the living room.
Posted outdoors near the marijuana plants were two medical recommendations for marijuana use. One was for Anderson and the other was for Jason Roberts, Anderson’s son-in-law. The recommendation for Anderson stated that he could have “more than eight oz and up to 99 plants.” The recommendation for Roberts stated that Roberts could have “up to 99 … mature flowering cannabis plants and … up to 5 … pounds dried cannabis flowers.” Detective Erhardt, however, believed the marijuana could not be legitimate medical marijuana because the quantity was too large, there was packaged marijuana, and there had been sales to the dispensary.
The sheriff’s department seized all the money in Anderson’s personal bank account and the bank account Anderson used for his plumbing business,
which had revenue of $120, 000 to $190, 000 per year. None of the money had been returned at the time of trial. According to Detective Erhardt, 60 percent of the forfeited assets would be retained by the sheriff’s department and 10 percent by the district attorney’s office.
The district attorney filed a complaint, which was later deemed an information, alleging three counts: (1) cultivating marijuana (Health & Saf. Code, § 11358); (2) possession of marijuana for sale (§ 11359); and (3) possession of concentrated cannabis (§ 11357, subd. (a)). In connection with each count, the complaint alleged for purposes of sentence enhancement that Anderson was armed with three handguns. (Pen. Code, § 12022, subd. (a)(1).)
Before trial, Anderson filed a motion to dismiss pursuant to Penal Code section 1385. The motion argued that the sheriff’s department had destroyed all the marijuana except for samples and, in taking the samples, had failed to comply with Health and Safety Code section 11479.
Section 11479 provides:
“Notwithstanding Sections 11473 and 11473.5, at any time after seizure by a law enforcement agency of a suspected controlled substance, that amount in excess of 10 pounds in gross weight may be destroyed without a court order by the chief of the law enforcement agency or a designated subordinate. Destruction shall not take place pursuant to this section until all of the following requirements are satisfied:
“(a) At least five random and representative samples have been taken, for evidentiary purposes, from the total amount of suspected controlled substances to be destroyed. These samples shall be in addition to the 10 pounds required above. When the suspected controlled substance consists of growing or harvested marijuana plants, at least one 10 pound sample (which may include stalks, branches, or leaves) and five representative samples consisting of leaves or buds shall be retained for evidentiary purposes from the total amount of suspected controlled substances to be destroyed.
“(b) Photographs have been taken which reasonably demonstrate the total amount of the suspected controlled substance to be destroyed.
“(c) The gross weight of the suspected controlled substance has been determined, either by actually weighing the suspected controlled substance or
by estimating that weight after dimensional measurement of the total suspected controlled substance.
“(d) The chief of the law enforcement agency has determined that it is not reasonably possible to preserve the suspected controlled substance in place, or to remove the suspected controlled substance to another location. In making this determination, the difficulty of transporting and storing the suspected controlled substance to another site and the storage facilities may be taken into consideration.
“Subsequent to any destruction of a suspected controlled substance pursuant to this section, an affidavit shall be filed within 30 days in the court which has jurisdiction over any pending criminal proceedings pertaining to that suspected controlled substance, reciting the applicable information required by subdivisions (a), (b), (c), and (d) together with information establishing the location of the suspected controlled substance, and specifying the date and time of the destruction. In the event that there are no criminal proceedings pending which pertain to that suspected controlled substance, the affidavit may be filed in any court within the county which would have jurisdiction over a person against whom those criminal charges might be filed.”
Anderson’s motion argued that the People’s response to his informal discovery request revealed inadequate compliance with this statute. Anderson stated that the samples listed in the police report were never provided to the defense; the photographs taken were too small and did not show all the plants seized; and the method used to weigh the seized plants was not disclosed. The affidavit filed by the sheriff’s department pursuant to section 11479 stated that 187 plants were seized, weighing “approximately 150 pounds gross wet weight including stalks, ” and that the same day, 174 plants weighing approximately 142 pounds were destroyed “at a remote location.” This affidavit did not include any recitations about samples or photographs, did not state that the sheriff had made a determination that it was not reasonably possible to preserve the evidence, and did not say whether the weight was determined by weighing or measuring. Anderson argued that the sheriff’s department’s noncompliance was prejudicial because it prevented a determination of the quality, sex and maturity of the plants, which in turn prevented a determination of the quantity of usable marijuana that could be prepared from them. This would undermine his ability to raise a reasonable doubt about whether the quantity in his possession exceeded a reasonable amount for medical use by an individual or a collective.
The People’s opposition to the motion stated that five random samples and an estimated 10-pound sample consisting of eight plants were taken in
accordance with section 11479. The photographs of the plants “reasonably demonstrated the total.…” The samples “are available to the defendant for whatever purpose he requires.” If the pictures were too small, Anderson could enlarge them, and he would be given access to the sheriff’s department’s computer system to do so. Further, the appropriate remedy for a prejudicial failure to comply with section 11479 was suppression of evidence, not dismissal of the information. The opposition also remarked that, at the time of his arrest, Anderson expressed the “mistaken belief that it was legal to sell marijuana to dispensaries.”
At the hearing on the motion, Anderson argued that the prosecution had the burden of demonstrating compliance with section 11479 and had not shown that the samples were representative. The People argued that they believed they had complied. No evidence was presented at the hearing. The court denied the motion without explanation.
At trial, Anderson testified that he was 53 years old, was a licensed plumbing contractor, and had spent his working life operating his plumbing business. He had a number of health issues arising from accidents. In 1985, he was electrocuted and suffered burns, nerve damage, and brain damage. He was unable to work for five years after this accident. He was in car accidents in 1997 and 2008. In the second of these, he suffered a brain injury, a compression injury to his chest affecting a number of internal organs, and injuries to his back, hip, knees, and feet. After the 2008 car accident, he decided to try medical marijuana for back pain and muscle cramps related to his injuries. He obtained a physician’s recommendation for medical marijuana in 2008, and it remained current at the time of trial.
Dr. Daniel Shadoan, Anderson’s physician, testified. He said that, in addition to injuries caused by accidents, Anderson had a genetic rheumatological autoimmune condition called ankylosing spondylitis. This was Anderson’s primary medical issue. The condition causes pain and stiffening of the joints and can lead to fusion of the spine. The conventional treatment of this condition employs medications that suppress the immune system and can cause severe side effects. Dr. Shadoan provided ongoing osteopathic treatment for Anderson’s condition. He was not involved with Anderson’s use of medical marijuana and was not the doctor who issued Anderson’s marijuana recommendation, but he acknowledged that marijuana had helped with Anderson’s pain and also alleviated the severe insomnia which he had suffered since the electrical shock.
Anderson testified about the intended uses of the growing plants and the processed marijuana found on the property. He said he was in the process of forming a medical marijuana collective for himself, his domestic partner
Susan Silva, his son-in-law Jason Roberts, and two other men. Thirty other people planned to join “as soon as we became official.” Anderson planned to provide the marijuana from the plants to himself and Silva and then to the other collective members if there was enough. Incorporation of the collective was completed a week after Anderson’s arrest.
The processed and packaged marijuana found in the house was from previous years and was for Anderson and Silva. Anderson usually ground his marijuana into powder and placed it in capsules for swallowing because he did not like the feeling of intoxication that comes from smoking. He used about two ounces a week. The concentrated cannabis had come from a collective in San Francisco, and Anderson used it for severe attacks of pain and stiffness. Regarding the guns, Anderson testified that all of them were registered, that he had had a hunting license every year since he was 16, and that he kept some ...