People v. Orlosky

Filed 1/16/15
CERTIFIED FOR PARTIAL PUBLICATION*

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D064468

Plaintiff and Respondent,

v. (Super. Ct. No. SCD244120)

ROBERT C. ORLOSKY,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Peter C.

Deddeh and Albert T. Harutunian III, Judges. Reversed.

Alex Kreit, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Meagan J. Beale and Heather F. Crawford, Deputy Attorneys General, for Plaintiff and

Respondent.

* Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for
publication with the exception of Discussion, part IV.
 Robert C. Orlosky appeals from a judgment convicting him of marijuana

possession and cultivation. He argues the judgment must be reversed because the court

refused his request to instruct the jury on the statutory collective cultivation defense,

which permits qualified medical marijuana patients to join together to cultivate marijuana

to meet their medical needs. The trial court rejected application of the collective

cultivation defense on the basis that defendant and his roommate (who were growing

marijuana together) had not formed a marijuana collective with some indicia of formality.

The Attorney General acknowledges that an instruction on the collective

cultivation defense was likely warranted (although maintaining the particular instruction

drafted by defense counsel did not accurately apply to the facts of this case). As we shall

explain, although indicia of a formally-organized collective may be a relevant evidentiary

factor for a jury to evaluate, it is not a mandatory requirement that precludes application

of the collective cultivation defense to informal joint cultivation arrangements between

two qualified patients who grow marijuana exclusively for their own medical use.

Accordingly, the court erred in refusing to instruct on the defense. We also find the error

was prejudicial.

For guidance in the event of retrial, we also address two additional claims of

instructional error raised by defendant. We conclude (1) no mistake of fact instruction

was required, and (2) there was no error in the instruction defining marijuana.

As requested by defendant, we have also reviewed the record of an in camera

hearing conducted by the trial court in response to defendant's discovery request, and find

no abuse of discretion.

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 FACTUAL AND PROCEDURAL BACKGROUND

After receiving an anonymous tip and conducting a preliminary investigation, on

October 26, 2012, agents of the federal Drug Enforcement Administration (DEA) and

local deputy sheriffs executed a search warrant at the rural property where defendant

lived in a trailer with his roommate David Jones. The authorities found numerous

marijuana plants at the property, and thereafter charged defendant and Jones with

possession of marijuana for sale and cultivation of marijuana. At trial, defendant raised a

medical marijuana defense under the Compassionate Use Act of 1996 (Health & Saf.

Code, § 11362.5)1, claiming he was growing marijuana solely for medical purposes.

Based on evidence that he and Jones were growing marijuana together and to support a

claim that he did not possess marijuana in excess of his and Jones's medical needs,

defendant requested the jury be instructed on the collective cultivation defense set forth

in section 11362.775, which allows qualified patients to associate to collectively cultivate

marijuana for medical purposes. The trial court refused to instruct on this defense based

on its view that some level of formality was required to establish the existence of a

marijuana-growing collective or cooperative. After hearing the evidence, the jury

rejected the charge of possession for sale, but found defendant guilty of marijuana

cultivation and marijuana possession.

The prosecution witnesses included defendant's roommate Jones (who apparently

pled guilty before trial) and two law enforcement officials involved in the seizure of the

1 Subsequent unspecified statutory references are to the Health and Safety Code.

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marijuana (federal agent David Lurty and deputy sheriff Matthew Stevens). Defendant

testified on his own behalf and called two expert witnesses (patient advocate William

Britt and naturopathic doctor Michelle Sexton) to support his claim that he possessed the

marijuana solely for medical purposes.

In defendant's bedroom, the authorities found six one-gallon size plastic bags

containing processed marijuana bud, a blue tub containing mostly marijuana leaves and

shake, and nine marijuana stems (with buds) hanging to dry.2 In Jones's bedroom, they

found a marijuana stem hanging to dry and a small plastic container with some marijuana

in it. Outside, the authorities found 11 marijuana plants, including plants that were over

six feet tall and that had bud on them. There was indicia of marijuana use in the kitchen

and living room areas (i.e., small amounts of marijuana, a couple of marijuana pipes,

rolling papers, a bong, a vaporizer, and a small digital scale with marijuana residue on it).

The authorities also found two firearms at the residence (an unloaded rifle in the kitchen

and a shotgun loaded with two shells in defendant's bedroom), and $2,791 cash in

defendant's bedroom. They did not find any pay and owe sheets or "dime bags" that

could have been used to sell smaller quantities of marijuana.

Jones was called as a witness by the prosecution to describe the marijuana

cultivation activities occurring on the property. Jones's testimony was in large part

consistent with the activities described by defendant during the defense case. Jones and

2 Bud is the flower of the female plant that is typically smoked or ingested by
marijuana users. Shake is ground-up marijuana leaves that can be used for edibles or
smoking, although according to defense witnesses not all leaves are usable for this
purpose and they have less potency than bud.
4
defendant explained that defendant's father owned the land and rented it to a man named

Christian, and Christian in turn rented it to defendant and Jones. Christian was growing

about 65 to 70 marijuana plants in an outdoor greenhouse made of PVC pipe, and when

the authorities arrived on October 26 all but one of these plants had been harvested or had

died. Christian did not live on the property, and Jones and defendant did not participate

in Christian's cultivation of his plants.

In March 2012, Jones and defendant started growing marijuana together at the

property, with most of the plants placed in a wooden greenhouse they had constructed.

Jones (age 24) and defendant (age 23) were both employed, and they both had medical

marijuana recommendations from doctors. Jones testified he got his marijuana

recommendation in January 2012, and he used marijuana for insomnia and to alleviate

pain from an injury that shattered his nose. Defendant testified he obtained his marijuana

recommendation starting in 2010, and used marijuana for chronic pain and pain-induced

insomnia that arose from accidents in which he broke his pelvis and was shot in the thigh

area. Defendant provided a copy of his written marijuana recommendation and also

presented testimony from Dr. Sexton, who elaborated on the nature of defendant's

injuries, the debilitating nature of the bone pain defendant suffered due to the bullet

fragments that remained lodged in his thigh, and his use of marijuana to help him

function during the day and sleep at night.

Regarding the amounts of marijuana each used, Jones stated he used about two

grams per day and defendant said he used about five to eight grams per day. Defendant

explained he used marijuana after work and during the night when he could not sleep, and

5
his preferred method of use was a vaporizer since it was not as hard on the lungs as

smoking. Jones and defendant testified that defendant used the scale found at the

residence to measure his daily portions. Defendant stated the doctors who gave him the

marijuana recommendations did not tell him how much he should use, but said he would

find an appropriate dosage after consuming for a while.

Jones and defendant testified they grew a total of about 15 to 20 plants; defendant

did most of the work; and Jones helped by watering the plants and adding nutrients.

According to Jones, he was to receive about 10 percent of the marijuana. Defendant

estimated that Jones would receive about two to three plants' worth of marijuana. About

one month before the authorities arrived, Jones and defendant harvested about three or

four plants, dried them, and extracted the marijuana bud and the marijuana leaves that

were found in defendant's bedroom. They kept most of the harvested marijuana in

defendant's room because it was mainly his marijuana, although Jones was allowed to go

into defendant's room and use some of it if he wanted to do so.

About one week before the search, Jones and defendant harvested about five more

plants, chopped them in half, and hung them to dry in defendant's and Jones's rooms. Of

the 11 plants still growing outdoors when the police arrived, seven were available for the

joint cultivation activity. Of the 11 plants, one was brown and unhealthy or dead; one

was in Christian's greenhouse and belonged to Christian; and two smaller plants (located

6
in a structure separate from defendant and Jones's wooden greenhouse) were Jones's

personal plants.3

Regarding the amount of marijuana they expected to harvest from the plants, Jones

testified he and defendant planned to grow the "legal amount." Jones stated he knew very

little about growing marijuana; he did not know how big the plants would get or how

much marijuana there might be in excess of their medical needs; and he did not know

how many plants he would receive based on his 10 percent share of the harvest.

Defendant testified he wanted to try growing marijuana because it had gotten too

expensive to buy it from dispensaries; he took some horticulture classes to learn how to

grow plants and read a brochure about marijuana growing; and he wanted to grow enough

marijuana to last for one to two years. However, he did not know how big the plants

would get or how much bud he might get from each plant.

According to Jones, when he saw how big the plants grew he assumed there would

be marijuana left over after their medical usage, and their plan was to sell any excess to a

marijuana collective or a friend who had a medical marijuana recommendation.

According to defendant, when they saw how big the plants were growing, Jones

mentioned the idea of selling any excess to a collective. Defendant testified he never

3 During the search of the property, the authorities also found a variety of other
items outside that could be associated with marijuana-growing, including "grow pots";
"grow bags"; a "grow tent" designed for indoor cultivation; and a storage shed with
indoor cultivation fans, ventilation tubing, and a ballast to allow for high intensity indoor
electrical lighting systems. Jones and defendant said these materials belonged to
Christian, and they only grew marijuana outdoors.
7
planned for or investigated selling to a collective, although he might have explored this if

there had been a lot of excess and if it was legal to sell to a collective.

Defendant explained he got the shotgun and rifle from his father; he used them for

target shooting and for protection or the appearance of protection from illegal immigrants

who broke into houses; and the $2,791 cash in his room was from the sale of a backhoe

that his father had given him. Apart from the discussion about possibly selling to a

collective, defendant testified he never sold marijuana to anyone and never planned to do

so. Jones testified he never saw defendant sell marijuana to their friends and never saw

any strangers coming in and out of the residence. To refute Jones's claim on this point,

DEA agent Lurty testified that when he interviewed Jones, Jones told him that defendant

had sold marijuana to Jones's friends.

Expert Opinions

The prosecution's evidence concerning the specific amounts of marijuana found in

defendant's bedroom showed there was 1.26 pounds of processed marijuana in the Ziploc

bags, 12.1 pounds of drying stems, and 2.6 pounds of mostly leaves and shake in the tub.

Based on these amounts, as well as a consideration of the plants growing outside and

other factors, the prosecution and defense experts presented their views relevant to the

amount of usable product, the purpose of defendant's possession, and amounts reasonably

associated with medical use.

Prosecution expert Deputy Stevens opined that a person who had 572 grams of

processed marijuana in six separate bags, nine drying stems containing bud, 10 growing

plants with bud, a weighing scale, and $2,791 in cash would possess these items for sale.

8
He stated this was "a lot of marijuana"; the packaging was indicative of sales; and a

person who is using but not selling does not need a scale. He testified a typical joint

contains about one-half gram of marijuana, and the effects last about four hours

depending on the potency. He stated an outdoor plant can yield about one to five pounds

of bud, and acknowledged that the amount of marijuana usually possessed for personal

use varies. He opined that after about 30 days, the levels of the marijuana ingredient that

makes a person "high" (THC) start to diminish; however, he did not know the rate at

which this occurred.

In contrast, defense expert Britt testified that patients frequently use scales for

portion control, and marijuana can last up to two years if kept in a cool, dark place, and

even after two years it is still usable. He stated that the 1.26 pounds of processed

marijuana in the plastic bags was entirely bud, and he estimated there was about three to

four pounds of usable bud in the hanging stems; about 10 grams of usable bud in the tub;

and about one-half pound to one pound of leaves in the tub that could be used for baking.

Relevant to the outdoor plants, Britt explained that the amount of anticipated yield

depends on such factors as plant size and the size of the plant's canopy. He opined the

seven plants found outdoors and attributed to defendant would yield a total of about three

and one-half pounds of bud and the two smaller plants (belonging to Jones personally)

would yield about two to three ounces.

Britt testified that because of the growing seasons most people can only harvest

marijuana once per year, and it would be reasonable for a patient to cultivate enough to

last for one or two years. When viewing photos of defendant's outdoor plants, Britt stated

9
the plants appeared to have been cultivated by a novice grower because they had grown

to an unwieldy height; they had not been trimmed to maximize the yield and quality; and

the supports for the plants were improperly placed. He said it is very difficult for a

novice grower to know what the yield from the plants will be because he or she will not

know, for example, how big the plant will grow or whether it will be attacked by pests.

Defense expert Dr. Sexton testified that marijuana is a "pretty stable compound"

under ideal storage conditions, although it does degrade over time to some extent; for

example, a plant might degrade from 10 percent to 8 percent THC content after the

passage of a year. She testified a joint typically contains about one gram of marijuana,

and the effects last about three to four hours. She stated doctors do not typically

recommend a specific dosage of marijuana because there is a high level of variability in

patient tolerance levels and plant potency, and patients are normally told to use the

amount that gives them pain relief. Although recognizing this was an "inexact science,"

Dr. Sexton estimated defendant could reasonably use about eight grams a day of

marijuana to control his chronic pain. For example, he could use about one gram every

three hours, including during the night, or he could use a higher dosage during the night

when pain tends to worsen, and a lower dosage during the day.

Closing Arguments and Absence of Instruction on Collective Cultivation Defense

In closing arguments to the jury, the prosecutor argued that the amount of

marijuana possessed by defendant was so excessive that it could not have been solely for

his medical use; for example, the processed marijuana in his bedroom alone equated with

1,000 (half-gram size) joints. In contrast, relying on the evidence presented by the

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defense experts, defense counsel argued defendant possessed a total of about 7.7 or 8.7

pounds of marijuana, which was less than the 12.8 pounds that would be required to last

for two years at a usage rate of about eight grams per day. As we shall detail below,

relevant to the collective cultivation defense, in closing arguments counsel addressed the

question of whether Jones's need for medical marijuana could be considered, but no

instructions were provided on the collective cultivation defense and the trial court limited

defense counsel's ability to fully develop an evidentiary basis to support it.

Jury Verdict and Sentence

Defendant was charged with cultivation of marijuana (count 1, § 11358) and

possession of marijuana for sale (count 2, § 11359), with an enhancement allegation that

he was armed with a firearm for each count (Pen. Code, § 12022, subd. (a)(1)). For count

1, the jury found him guilty of marijuana cultivation, and found the alleged firearm

enhancement true. For count 2, it acquitted him of possession for sale, and found him

guilty of the lesser offense of possession of more than 28.5 grams (§ 11357, subd. (c)).

The court suspended imposition of sentence and placed defendant on three years of

formal probation.

DISCUSSION

I. Law Governing Medical Marijuana

In 1996, California voters approved a proposition enacting the Compassionate Use

Act (CUA) which is designed to "ensure that seriously ill Californians have the right to

obtain and use marijuana for medical purposes . . . ." (§ 11362.5, subd. (b)(1)(A).) The

CUA provides that the criminal statutes proscribing marijuana possession and cultivation

11
do not apply to patients who possess or cultivate marijuana for their personal medical

purposes upon a doctor's written or oral recommendation or approval. (§ 11362.5, subd.

(d); People v. Kelly (2010) 47 Cal.4th 1008, 1012 (Kelly).)4

The CUA does not specify an amount of marijuana that a patient may possess or

cultivate, but simply imposes the requirement that the marijuana must be for the patient's

"personal medical purposes." (§ 11362.5, subd. (d), italics added; Kelly, supra, 47

Cal.4th at p. 1013.) This medical purposes requirement has been judicially construed to

mean " 'the quantity possessed by the patient . . . , and the form and manner in which it is

possessed, should be reasonably related to the patient's current medical needs.' " (Kelly,

supra, at p. 1013.)

The CUA includes a provision stating that one of its purposes is to "encourage the

federal and state governments to implement a plan to provide for the safe and affordable

distribution of marijuana to all patients in medical need of marijuana." (§ 11362.5, subd.

(b)(1)(C), italics added.) Responding to this directive, in 2003 the California Legislature

enacted the Medical Marijuana Program (MMP) which added several new code sections

to the Health and Safety Code. (Kelly, supra, 47 Cal.4th at p. 1014; People v. Urziceanu

(2005) 132 Cal.App.4th 747, 782-783.) One of the purposes of the MMP is to

" '[e]nhance the access of patients and caregivers to medical marijuana through collective,

4 Section 11362.5, subdivision (d) states: "Section 11357, relating to the possession
of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply
to a patient, or to a patient's primary caregiver, who possesses or cultivates marijuana for
the personal medical purposes of the patient upon the written or oral recommendation or
approval of a physician."
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cooperative cultivation projects.' " (People v. Colvin (2012) 203 Cal.App.4th 1029,

1035.) To effectuate this goal, the MMP includes a provision concerning collective

cultivation, stating that "[q]ualified patients who associate . . . in order collectively or

cooperatively to cultivate marijuana for medical purposes" are exempt from criminal

culpability. (§ 11362.775, italics added; People v. Urziceanu, supra, 132 Cal.App.4th at

p. 785.)5 A qualified patient who may participate in this collective cultivation is defined

as "a person who is entitled to the protections of Section 11362.5 . . . ."; i.e., patients who

cultivate for medical purposes upon the written or oral recommendation or approval of a

physician. (§ 11362.7, subd. (f).)

Although section 11362.775 clearly provides for collective cultivation, it does not

specify what the Legislature meant by an association of persons who engage in collective

or cooperative cultivation for medical purposes. For example, there is no mention of

formality requirements, permissible numbers of persons, acceptable financial

arrangements, or distribution limitations. Not surprisingly, therefore, over the past

decade there has been considerable litigation as to how the collective cultivation

provision should be applied. Numerous courts have focused on collective endeavors

involving the distribution of marijuana to large numbers of persons who are not involved

in the cultivation activity. In that context, the courts have concluded the provision

5 Section 11362.775 states: "Qualified patients, persons with valid identification
cards, and the designated primary caregivers of qualified patients and persons with
identification cards, who associate within the State of California in order collectively or
cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of
that fact be subject to state criminal sanctions under Section 11357, 11358, 11359, 11360,
11366, 11366.5, or 11570."
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properly encompasses relatively large scale enterprises that distribute marijuana to

qualified patients, so long as the enterprise operates on a nonprofit basis and in a manner

consistent with distribution for medical purposes. (People v. Jackson (2012) 210

Cal.App.4th 525, 529-530, 538-539; People v. Colvin, supra, 203 Cal.App.4th at pp.

1036-1037; see People v. Urziceanu, supra, 132 Cal.App.4th at p. 785.) Further, the

courts have found the collective cultivation provision does not require that all members

actively participate in the cultivation process but allows for members to support the

cooperative endeavor through, for example, financial contributions to pay for the cost of

the cultivation. (People v. Jackson, supra, at pp. 529-530, 536-537.)

In addition to judicial authority defining legal distribution endeavors, the Attorney

General has issued detailed guidelines that delineate a variety of criteria to assist with

identifying legitimate medical marijuana distribution operations, including for example,

the dispensary's compliance with state and local licensing and permit laws and the

presence of other indicia of a formally organized business. (Attorney General Guidelines

for the Security and Non-diversion of Marijuana Grown for Medical Use (Aug. 2008) pp.

8-11 (Guidelines).) 6 This business formality factor has been used by the courts when

examining whether a particular marijuana dispensary operation falls within the purview

6 The Guidelines are available at:
http://ag.ca.gov/cms_attachments/press/pdfs/n1601_medicalmarijuanaguidelines.pdf [as
of January __, 2015].) Additional criteria specified in the Attorney General's guidelines
include such factors as limitation of purchase, sale and distribution transactions to
persons who are qualified patients and members of the cooperative; limitation of
monetary reimbursement from members to amounts necessary for overhead and operating
costs; and documentation of each member's contribution of resources to the enterprise.
(Guidelines, supra, at pp. 8-11.)
14
of criminally-exempt activity under the collective cultivation provision. (See, e.g.,

People v. Jackson, supra, 210 Cal.App.4th at p. 539; People v. Solis (2013) 217

Cal.App.4th 51, 53, 57-59; People v. Colvin, supra, 203 Cal.App.4th at p. 1040; People

v. London (2014) 228 Cal.App.4th 544, 566.)

To date, the legal standards governing the collective cultivation provision,

including the references to the business-formality criteria, have been developed primarily

in cases involving expansive marijuana distribution operations to persons outside the

cultivation activities. There has been little or no discussion of the collective cultivation

defense in the context of informal cultivation efforts among a limited number of qualified

patients who simply grow and use their own marijuana with no involvement or

distribution to other qualified patients.

In People v. Jackson, supra, 210 Cal.App.4th 525—a case involving the question

of whether a large scale distribution operation could properly qualify for the collective

cultivation defense—this court identified the essential elements of the collective

cultivation defense as: (1) qualified patients who have been prescribed marijuana for

medical purposes, (2) the patients collectively associate to cultivate marijuana, and (3)

the patients are not engaged in a profit-making enterprise. (Id. at p. 529.) Of particular

import here, we did not identify business formality as a mandatory requirement for the

defense in all cases. Instead, when evaluating the nonprofit requirement, we noted that

indicia of a formally organized business will be highly relevant when a marijuana

operation has a large number of members and high business volume, and accordingly the

15
jury should be instructed that it may consider compliance with business formality as a

relevant factor. (Id. at p. 539.)

Concerning the amount of evidence needed to require instruction on the collective

cultivation defense, we emphasized in Jackson that the defendant only has a "minimal

burden" in this regard. (People v. Jackson, supra, 210 Cal.App.4th at pp. 533, 538-539.)

That is, the defendant need only raise a reasonable doubt about the existence of the

defense, and once this burden is met, the court must provide the instruction and inform

the jury that the prosecution has the burden to disprove the defense beyond a reasonable

doubt. (Ibid.; see People v. Mower (2002) 28 Cal.4th 457, 479-481; People v. Mentch

(2008) 45 Cal.4th 274, 292-294 (conc. opn. of Chin, J.); People v. Saavedra (2007) 156

Cal.App.4th 561, 570-571.)

II. Refusal To Instruct on Collective Cultivation Defense

Defendant argues the trial court erred in refusing his request that the jury be

instructed on the collective cultivation defense set forth in section 11362.775. Under the

particular circumstances of this case, we agree.

Upon request by the defendant, a trial court is required to instruct on a defense that

is supported by substantial evidence. (People v. Petznick (2003) 114 Cal.App.4th 663,

677.) When deciding whether the evidence is sufficient to warrant a jury instruction, the

trial court does not determine the credibility of the evidence, but only whether there is

evidence which, if believed by the jury, is sufficient to raise a reasonable doubt of guilt.

(People v. Salas (2006) 37 Cal.4th 967, 982.) The court must "take the proffered

evidence as true, 'regardless of whether it was of a character to inspire belief . . . .

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[Citation.]' [Citation.] ' "Doubts as to the sufficiency of the evidence to warrant

instructions should be resolved in favor of the accused." [Citations.]' " (Petznick, supra,

at p. 677.) On appeal, we independently review the court's refusal to instruct on a

defense. (People v. Manriquez (2005) 37 Cal.4th 547, 581.)

Here, at the close of the presentation of evidence, defense counsel provided the

court with a proposed instruction on the collective cultivation defense and requested that

the court instruct the jury on the defense. Defense counsel reiterated the instructional

request after closing arguments, and then after the jury's verdict, defense counsel filed a

new trial motion based on the court's refusal to instruct on the defense. Defense counsel

argued instruction on the collective cultivation defense was required because there was

evidence defendant and Jones were growing marijuana together; a collective was merely

an "association of two or more people who work together to cultivate" and did not need

to be organized in any particular fashion; and without an instruction the jury "may be left

wondering, well, each of these people can own separately, but they're not supposed to

work together, and therefore have enough for two people." The court repeatedly denied

defense counsel's request, ruling the defense did not apply to the facts of this case. The

court ultimately explained that some level of formality was required to warrant

application of the defense, stating: "[W]hatever agreement Mr. Jones and [defendant]

had, I don't think that rises to the level of [a] collective" because a collective requires

"records, agreements, and not just two guys hanging out together saying, 'hey, maybe we

should do this.' "

17
 When declining defendant's request for an instruction on the collective cultivation

defense, the trial court applied the business formality criteria typically used to evaluate

the legitimacy of a broad scale marijuana distribution enterprise, and the court assumed

the absence of this formality foreclosed the defense in a case involving an informal

cultivation arrangement between two qualified patients.

On appeal, the Attorney General asserts that the specific instruction proffered by

defense counsel was not supported by the evidence because it identified factors relevant

to medical marijuana dispensaries, not to the alleged two-person collective claimed by

the defense in this case.7 However, the Attorney General acknowledges that "a simple

instruction on the right of qualified patients to associate to collectively or cooperatively

cultivate marijuana may have been warranted," but argues any instructional error was

harmless. Under the circumstances of this case, we conclude the court erred in failing to

instruct on the defense, and the error was prejudicial.

When interpreting the collective cultivation provision, we view the statutory

enactment as a whole; consider the plain, commonsense meaning of the statutory

language; and seek to effectuate the law's purpose. (People v. Fandinola (2013) 221

7 The instruction drafted by defense counsel, derived in part from the Attorney
General's Guidelines, sets forth the concepts that under the MMP, qualified patients may
associate to collectively or cooperatively cultivate marijuana for medical purposes; a
collective is an organization that facilitates the collaborative efforts of patients; it is not a
statutory entity but as a practical matter might have to organize as some form of business
to carry out its activities; it should not purchase from or sell to nonmembers; marijuana
may be allocated based on fees reasonably calculated to cover overhead and operating
expenses; and not all members must participate in the cultivation as long as the collective
is nonprofit.
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Cal.App.4th 1415, 1421-1422; People v. Colvin, supra, 203 Cal.App.4th at p. 1037.) The

collective cultivation provision set forth in section 11362.775 refers to qualified patients

who associate to collectively or cooperatively cultivate marijuana. As noted, neither the

statute itself, nor case law, have specified any size or formality requirements for the

proper creation of the cooperative endeavor. Although business formality has been

identified as a relevant evidentiary criterion that increases in probative value as the size

of the marijuana distribution enterprise increases, it has not been identified as a

mandatory requirement that automatically excludes all informal collective cultivation

arrangements from the purview of the collective cultivation defense. (People v. Jackson,

supra, 210 Cal.App.4th at p. 539.) Thus, the plain language of the collective cultivation

statute, as well as the manner in which the business formality factor has been judicially

applied, reflects that the absence of formality does not foreclose establishment of the

collective cultivation defense in a case involving a joint cultivation endeavor confined to

two qualified patients with no outside distribution.

Further, permitting application of the defense to informal collective cultivation

activity is consistent with the overall statutory goal of ensuring that qualified persons

have access to marijuana for medical use. Considering the broad language used in the

collective cultivation provision in conjunction with the legislative goal of providing

access, the statutory scheme encompasses legitimate medical marijuana collective

cultivation activities between two qualified patients who grow only for themselves. (See

People v. Colvin, supra, 203 Cal.App.4th at p. 1041 [evaluating application of section

19
11362.775 to large marijuana distribution operation, but recognizing that Legislature may

have "envisioned small community or neighborhood marijuana gardens"].)

Accordingly, we conclude that when there is substantial evidence to support that

two qualified patients are engaging in an informal cultivation arrangement to grow and

share marijuana only among themselves for medical purposes with no distribution to

outsiders, the absence of business formality does not preclude submitting the defense to

the jury for its consideration. Thus, the court erred when ruling the collective cultivation

defense could not be applied in this case without evidence of a formally organized

collective.

Substantial Evidence Supporting the Instruction

Because the informal nature of the cultivation arrangement in this case did not

foreclose application of the collective cultivation defense, the court was required to

instruct on the defense if there was substantial evidence to support it. The record shows

the required substantial evidence. There was no dispute that defendant and Jones were

growing marijuana together. Also, there was evidence that Jones, like defendant, was a

qualified patient. Jones testified he had a marijuana recommendation from a doctor and

that he used marijuana for pain and insomnia. The CUA permits assertion of the

compassionate use defense upon a written or oral doctor's recommendation, and Jones's

testimony that he had this recommendation was sufficient to warrant submitting the issue

of his qualified patient status to the jury for its determination. (§ 11362.5, subd. (d); see

People v. Jones (2003) 112 Cal.App.4th 341, 350-351 [based on defendant's testimony

that he had doctor's oral approval to use marijuana, trial court was required to allow

20
presentation of compassionate use defense to jury].) Finally, there was testimony from

Jones, defendant, and the defense experts that supported the view that the amount of

marijuana possessed by defendant was reasonably related to defendant's and Jones's

combined medical needs.

Prejudice

The failure to instruct on the collective cultivation defense requires reversal

regardless whether we apply the reasonable probability of a different outcome standard

for state law error or the harmless beyond a reasonable doubt standard for federal

constitutional error. (People v. Salas, supra, 37 Cal.4th at p. 984 [prejudice test for

failure to instruct on defense not yet determined]; People v. Rogers (2006) 39 Cal.4th

826, 871-872 [harmless beyond a reasonable doubt standard applies when error deprives

defendant of right to present complete defense]; People v. Demetrulias (2006) 39 Cal.4th

1, 23.)

The key disputed issue at trial was whether the amount of marijuana grown and

possessed by defendant exceeded a legitimate medical purpose. The jury was instructed

that under the compassionate use defense, the "amount of marijuana possessed or

cultivated must be reasonably related to the patient's current medical needs." (Italics

added; see CALCRIM Nos. 2370, 2352, 2375.) However, the jury was given no

instruction indicating that if it found defendant and Jones to be qualified patients who

were growing marijuana together for their own use, defendant could lawfully grow

marijuana commensurate with two patients' medical needs.

21
 Thus, when the jury was evaluating the pivotal issue of whether defendant had an

excessive amount of marijuana that would preclude application of the compassionate use

defense, it had not been told it could consider defendant's possession and cultivation in

light of the evidence that he was engaging in a cooperative growing operation with

another qualified patient. The jury's view of the reasonableness of the amounts possessed

by defendant may well have been altered had it been instructed on the collective

cultivation defense and based thereon decided to incorporate Jones's medical needs and

usage into its calculations.

Also, although there were some references in the record to the existence of the

collective cultivation defense, in several instances the trial court precluded defense

counsel from fully developing the evidentiary basis for the defense. That is, defense

counsel elicited brief testimony from defense expert Britt about the collective cultivation

defense, and in closing arguments defense counsel urged the jury to consider both

defendant's and Jones's medical needs, whereas the prosecutor told the jury that defendant

could only grow marijuana for himself because there was not enough evidence to

establish that Jones was a qualified patient. However, the trial court sustained relevancy

and/or hearsay objections when defense counsel sought to elicit testimony from Britt

about a small collective, from Dr. Sexton about her knowledge of Jones's medical needs,

and from defendant about his knowledge of Jones's marijuana recommendation.

At best, the jurors may have gleaned from these references that collective

cultivation can be raised as a defense, but they could have been easily misled to think the

defense did not properly apply to this case because the defense was not mentioned in the

22
instructions and they heard the court curtailing defense counsel's attempts to elicit

additional testimony relevant to the defense. Without guidance from the court on this

area of the law, the jury might have thought (as did the court) that the defense was legally

inapplicable to defendant and Jones because they were not a formally organized

collective or cooperative. Also, because no affirmative instruction on the defense was

provided, the jury may not have recognized that the prosecution had the burden to

disprove that defendant was engaged in collective marijuana cultivation with Jones for

medical purposes.

Finally, the record does not show that defendant necessarily possessed an amount

of marijuana that was so beyond reasonable medical usage for two people as to foreclose

the probability of application of the compassionate use defense even with proper

instruction on the collective cultivation defense. In addition to the evidence about

defendant's and Jones's medical marijuana recommendations, usage, and cooperative

cultivation, the jury was presented with evidence concerning defendant's gunshot injury

and need for pain medication, and expert views about the amount of marijuana he could

reasonably use, the reasonableness of cultivating marijuana to last for several years, the

uncertainties of yield results for novice growers, and the amount of usable marijuana he

possessed. The jury needed to evaluate this evidence to decide if defendant was selling

marijuana, whether he was a qualified patient, and if so, whether he possessed and/or

cultivated marijuana beyond his (and possibly Jones's) reasonable medical needs.

The jury rejected the prosecution's claim that defendant possessed the marijuana

with the intent to sell it, which indicates the jury did not view the amounts he possessed

23
as outside the realm of possession for personal use. Although the record can support that

defendant had an amount of marijuana beyond what would be reasonable to establish the

compassionate use defense, the record can also support a contrary conclusion if the jury

credited all or part of the defense evidence.

Because the primary dispute in this case was whether defendant's possession and

cultivation exceeded a legitimate medical purpose, and because there is a reasonable

probability the jury's assessment of this issue would have been different if the jury had

been instructed that the law permits collective cultivation among qualified patients, the

failure to instruct on the collective cultivation defense requires reversal.

III. Guidance in the Event of Retrial

To assist the court and parties if the case is retried, we address defendant's two

additional claims of instructional error: (1) the jury should have been instructed on

mistake of fact, and (2) the jury was incorrectly instructed on the definition of marijuana.

We need not address defendant's claim that the court improperly excluded an item of

expert testimony proffered from defense witness Britt since this is a matter for resolution

should it arise again in any retrial.

A. Failure To Instruct on Mistake of Fact

Defendant argues the trial court erred by failing to sua sponte provide, or his

counsel was ineffective for failing to request, an instruction on the mistake of fact

defense. In support, defendant contends there was evidence from which the jury could

find that he mistakenly estimated the amount of marijuana his plants would yield, or the

dosage of marijuana needed for his medical condition.

24
 Generally, a trial court has a sua sponte duty to instruct on principles of law that

are closely and openly connected to the facts and necessary to the jury's understanding of

the case (People v. Montoya (1994) 7 Cal.4th 1027, 1047), and defense counsel has a

duty to request all instructions that are necessary to explain the legal theories of defense

(People v. Sedeno (1974) 10 Cal.3d 703, 717, fn. 7). If the defendant had an honest and

reasonable belief in the existence of circumstances, which, if true, would make the act an

innocent act, the mistake of fact defense applies. (People v. Lucero (1988) 203

Cal.App.3d 1011, 1016-1017.) A mistake of fact occurs when a person understands the

facts to be other than what they are. (People v. LaMarr (1942) 20 Cal.2d 705, 710.) "A

mistake of fact exists 'when one makes an erroneous perception of the facts as they

actually exist . . . . The defense arises only where the defendant misperceives an

objective state of existing fact . . . .' " (State v. Beltran (1998) 246 Conn. 268 [717 A.2d

168, 172].)

Assuming that in some circumstances a court may have a sua sponte duty to

instruct on mistake of fact, on this record we find no error, nor do we find ineffective

assistance of counsel.8 In defendant's trial, factors such as the potential yield from the

plants and the amount medically needed by defendant were not presented as actual facts

that defendant could have misperceived to potentially relieve him of culpability; rather,

8 There is no sua sponte duty to instruct on the mistake of fact defense in cases
where the claimed mistake merely negates a mental state element that has been fully
explained to the jury in the instructions, so that the mistake of fact instruction is no more
than a pinpoint instruction on a defense claim. (People v. Lawson (2013) 215
Cal.App.4th 108, 117-119.)
25
they were presented as opinions and matters that could vary depending on the

circumstances. For example, a defense witness indicated it was difficult for novice

growers to determine the yield of their plants and opined that defendant's seven outdoor

plants could have yielded a total of about three and one-half pounds of marijuana,

whereas a prosecution witness opined the typical yield from an outdoor plant can be

between one and five pounds. Further, defendant explained how his doctors did not

provide a dosage amount to guide him, and a defense expert presented her views on the

variability of dosages among patients and the amount defendant could reasonably use on

a daily basis.

On this record, showing a multiplicity of views and opinions concerning yield

expectations and reasonable usage amounts, a defense claim that defendant miscalculated

or misunderstood these matters arose not from misperceptions of the facts as they

actually were but rather from the existence of different viewpoints and uncertainties

concerning yield and usage amounts. These differing views and uncertainties were

relevant for the jury to consider when evaluating all the circumstances to determine

whether defendant confined his possession and cultivation to amounts reasonably related

to medical purposes, but they were not actual facts that were misunderstood by defendant

as normally contemplated by the mistake of fact defense.

Although in some circumstances it might be appropriate to provide a mistake of

fact instruction with respect to the issue of reasonable medical needs, on this record the

trial court was not required to provide the instruction sua sponte, nor did counsel's failure

to request it rise to the level of ineffective representation.

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 B. Instruction on Definition of Marijuana

Defendant asserts the court erred in declining his request that the jury be instructed

on a particular definition of marijuana set forth in the MMP portion of the Health and

Safety Code (§ 11362.77, subdivision (d)), rather than the definition of marijuana set

forth in the general definitions section of the Health and Safety Code provisions

governing controlled substances (§ 11018).

The jury was given the standard CALCRIM instructions that delineate the offenses

of unlawful marijuana possession and cultivation as well as the compassionate use

defense, and include a definition of marijuana derived from the general definitions

section of the Health and Safety Code. (See CALCRIM Nos. 2370, 2352, 2375;

§§ 11000, 11018.) This definition generally states that marijuana can include all parts of

the plant, with some exceptions such as the stalks and certain types of seed derivatives.9

In contrast, section 11362.77, subdivision (d) of the MMP contains a narrower definition

of marijuana, confining it to the "dried mature processed flowers" of the plant. (Italics

added.) As we shall explain, the trial court correctly ruled the narrower MMP definition

was not applicable to this case.

9 The jury was instructed: "Marijuana means all or part of the Cannabis species
plant, including Cannabis sativa L. and Cannabis indica, whether growing or not,
including the seeds and resin extracted from any part of the plant. It also includes every
compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or
resin. It does not include the mature stalks of the plant; fiber produced from the stalks;
oil or cake made from the seeds of the plant; any other compound, manufacture, salt,
derivative, mixture, or preparation of the mature stalks (except the resin extracted there
from), fiber, oil, or cake; or the sterilized seed of the plant, which is incapable of
germination." (Italics added and some italics in original omitted.)
27
 The MMP includes "safe harbor" provisions that allow patients who suffer from

serious medical conditions to voluntarily obtain medical marijuana identification cards

which provide them protection from arrest. (Kelly, supra, 47 Cal.4th at pp. 1014-1015;

§ 11362.71, subd. (e).) In contrast, qualified patients who do not have identification

cards are not shielded from arrest, but must seek relief from criminal penalties by raising

their qualified patient status as a defense. (Kelly, supra, at pp. 1012-1014.) The MMP

also contains a provision (§ 11362.77) stating that a qualified patient may possess only a

maximum of "eight ounces of dried marijuana," unless a doctor recommends that this

quantity will not meet the patient's medical needs. (§ 11362.77, subds. (a), (b).) This

same section (§ 11362.77) contains the narrower definition of marijuana cited by

defendant, stating that only the "dried mature processed flowers of female cannabis plant

or the plant conversion shall be considered when determining allowable quantities of

marijuana under this section." (§ 11362.77, subd. (d), italics added.)10

In Kelly, the court held that section 11362.77's eight-ounce limitation could not be

used to override the CUA's allowance of medical marijuana possession in an amount

reasonably related to the patient's medical needs. (Kelly, supra, 47 Cal.4th at pp. 1012,

10 These subdivisions of section 11362.77 state: "(a) A qualified patient or primary
caregiver may possess no more than eight ounces of dried marijuana per qualified
patient. In addition, a qualified patient or primary caregiver may also maintain no more
than six mature or 12 immature marijuana plants per qualified patient. [¶] (b) If a
qualified patient or primary caregiver has a doctor's recommendation that this quantity
does not meet the qualified patient's medical needs, the qualified patient or primary
caregiver may possess an amount of marijuana consistent with the patient's needs.
[¶] . . . [¶] (d) Only the dried mature processed flowers of female cannabis plant or the
plant conversion shall be considered when determining allowable quantities of marijuana
under this section." (Italics added.)
28
1043-1049.) That is, although a patient with an identification card and possessing no

more than eight ounces of marijuana may seek protection from arrest under the MMP's

safe harbor provisions, the eight-ounce limitation may not be used to burden the

reasonable medical needs defense authorized by the CUA. (Kelly, supra, at pp. 1012,

1024, 1048-1049.)

Here, because defendant was raising the CUA as a defense and not seeking

protection under the MMP's safe harbor provisions, section 11362.77's eight-ounce

restriction was inapplicable. Consistent with this, the jury was instructed that under the

CUA "[t]he amount of marijuana possessed or cultivated must be reasonably related to

the patient's current medical needs." (CALCRIM No. 2370.) The jurors were also given

a special instruction explicitly advising them that the eight-ounce limitation did not

apply.

By its plain terms, section 11362.77's narrower marijuana definition applies only

"when determining allowable quantities of marijuana under this section" (italics added);

that is, when determining the eight-ounce limitation set forth in section 11362.77.

Because defendant's CUA defense was not governed by section 11362.77's eight-ounce

limitation, section 11362.77's narrower definition of marijuana did not apply.

We note the prosecutor argued to the jury that defendant's written medical

marijuana recommendation implicitly limited his possession to the eight-ounce maximum

set forth in the MMP because his doctor apparently did not fill out a portion of a

recommendation form asking if there was an exemption to the statutory limitation.

However, as stated, the jury was instructed that defendant's possession was not governed

29
by the eight-ounce restriction, and the prosecutor's attempt to argue that defendant's

prescription allowed possession of only eight ounces did not make this statutory

limitation the governing standard in defendant's case.11

Because defendant's CUA defense was not governed by section 11362.77's eight-

ounce limitation, the trial court properly declined to instruct the jury on the definition of

marijuana set forth in that section.

IV. Review of In Camera Hearing on Defendant's Discovery Request

Defendant requests that we review the record of an in camera hearing held by the

trial court to determine if the court abused its discretion in declining to order disclosure

of a photograph depicting marijuana cultivation on the property where defendant lived.

The photograph was provided to the authorities by an anonymous source and was

referenced in the search warrant executed at defendant's residence.

In response to defendant's request for disclosure of the photograph (plus disclosure

of the identity of the anonymous source), the prosecutor requested that the court either

deny the request because the material was irrelevant, or conduct an in camera hearing

outside the presence of the defense to determine if the anonymous informant privilege

(Evid. Code, §§ 1041, 1042) applied to bar disclosure. After conducting the in camera

11 Since this issue has not been raised on appeal, we express no opinion as to the
propriety of the prosecutor's assertion that defendant's doctor's recommendation
implicitly permitted him to possess only eight ounces of marijuana.

30
hearing, the court ruled the material was privileged and, further, it did not constitute

Brady12 material.

The People need not disclose the identity of an anonymous informant if the public

interest requires that confidentiality be maintained, unless the trial court determines at an

in camera hearing that there is a reasonable possibility that nondisclosure might deprive

the defendant of a fair trial. (Evid. Code, §§ 1041, 1042, subd. (d); People v. Lawley

(2002) 27 Cal.4th 102, 159-160; People v. Ruiz (1992) 9 Cal.App.4th 1485, 1488-1489;

see People v. Dickey (2005) 35 Cal.4th 884, 907-908 [Brady disclosure obligation

triggered only if evidence is favorable to defendant and material on issue of guilt].) We

review a trial court's disclosure decisions under the abuse of discretion standard. (Davis

v. Superior Court (2010) 186 Cal.App.4th 1272, 1277.)

12 Brady v. Maryland (1963) 373 U.S. 38.
31
 At defendant's request and with no opposition from the Attorney General, we have

reviewed the record of the in camera hearing and find the court did not abuse its

discretion in declining to order disclosure of the photograph. The sealed record supports

that disclosure of the photograph would not provide information favorable to defendant's

case, and the photograph was properly kept confidential to maintain the anonymity of the

source.

DISPOSITION

The judgment is reversed.

HALLER, Acting P. J.

WE CONCUR:

O'ROURKE, J.

AARON, J.

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