People v. Galambos

• Citation: 104 Cal.App.4th 1147,128 Cal.Rptr.2d 844
• Decision Date: 26 December 2002
• Docket Number: No. C032873.,C032873.
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Robert Michael GALAMBOS, Jr., Defendant and Appellant.

128 Cal.Rptr.2d 844

104 Cal.App.4th 1147

The PEOPLE, Plaintiff and Respondent, v. Robert Michael GALAMBOS, Jr., Defendant and Appellant.

No. C032873.

Court of Appeal, Third District.

December 26, 2002.

Certified for Partial Publication.^*

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, Stephen G. Herndon, Supervising Deputy Attorney General, Rachelle A. Newcomb, Deputy Attorney General, for Plaintiff and Respondent.

William G. Panzer, Oakland, for Defendant and Appellant.

KOLKEY, J.

Proposition 215, also known as the Compassionate Use Act of 1996, grants a limited immunity from prosecution for the cultivation or possession of marijuana by either a patient or a patient's primary caretaker, "who possesses or cultivates [the] marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician." (Health & Saf.Code, § 11362.5, subd. (d).)¹ Defendant Robert Michael Galambos, Jr., claimed to be cultivating marijuana for himself and a cannabis buyers cooperative for his own and others' medical use. Following a preliminary hearing, the trial court refused to extend the immunity afforded by Proposition 215 to cover defendant's cultivation of marijuana for the cooperative and disallowed his common law defense of medical necessity. A jury convicted him of marijuana cultivation (§ 11358).

This appeal requires us to decide whether the limited statutory immunity afforded under Proposition 215 is compatible with the common law defense of medical necessity or, alternatively, the broader construction of the proposition advocated by the defendant.

We conclude that judicial recognition of the broader and different immunity afforded by a medical necessity defense—which would not require a physician's recommendation, would excuse crimes other than the cultivation or possession of marijuana, and would extend the immunity beyond patients and their primary caretakers— would break faith with the California electorate in light of their adoption of the more narrow legislative exception to our criminal drug laws expressed by Proposition 215. An unexpressed common law defense should not be engrafted onto a statutory scheme that embodies an inconsistent policy determination.

We also reject defendant's claim that the limited immunity afforded under Proposition 215 to patients and primary care-givers should be extended to those who supply marijuana to them. The voter-approved statute carefully delimits the proffered immunity to patients and their primary care-givers. (§ 11362.5, subd. (d).) Neither the language of the proposition nor its ballot materials suggest any intent to extend its protections to those who do not qualify thereunder but who purport to supply marijuana to those who do. To the contrary the proponents' ballot arguments reveal a delicate tightrope walk designed to induce voter approval, which we would upset were we to stretch the proposition's limited immunity to cover that which its language does not.

We also conclude that the trial court did not abuse its discretion when it held a preliminary hearing to determine the admissibility of defendant's proposed defenses.

Finally, in the unpublished portion of our decision, we reject defendant's claims that Proposition 215 did not give him fair notice that his actions were unlawful.

FACTUAL AND PROCEDURAL BACKGROUND

I. The Underlying Facts

A. Defendant's Marijuana Cultivation

Since 1991, defendant has been eating and smoking marijuana, which he claims, effective for relieving a variety of symptoms caused by an earlier automobile accident.

In 1996, defendant began growing marijuana on his mother's property in Calaveras County to help himself and others with their health problems. Although defendant lost 80 percent of his first crop, he harvested approximately seven pounds in the fall of 1996.

In 1996, defendant became involved in fund-raising efforts for Proposition 215, which California voters approved at the November 5, 1996 General Election, thereby enacting section 11362.5, which became effective the next day.² After the proposition passed, defendant unsuccessfully sought a recommendation for medical marijuana use from physicians in his area. He did not obtain a recommendation, however, until after his arrest in this case.

The Oakland Cannabis Buyers' Cooperative (the "Oakland Cooperative" or the "Cooperative") was one of a number of organizations that distributed marijuana for medical purposes. The club's membership was 200 in the beginning of 1997 but increased to 1,500 by the end of 1997. The Cooperative obtained marijuana from several hundred growers.

In May 1997, defendant began a second marijuana crop. In June 1997, he contacted the Oakland Cooperative. The parties executed a certificate by which they agreed that all the marijuana that defendant grew would be designated for the Cooperative for medical use. To cover his expenses, defendant wanted—but did not have an opportunity to discuss—compensation for the marijuana that he would supply. This objective became moot, however, when the marijuana that defendant initially brought to the Cooperative in 1997 was rejected as too moldy.

B. Discovery of Defendant's Marijuana Cultivation

In an aerial overflight in June 1997, Calaveras County Sheriffs Deputy Eddie Ballard detected a marijuana cultivation site at a 40-acre rural property. After several visits to the site for further observation and after sighting defendant on one occasion, Ballard obtained a search warrant that he and other officers served on defendant at the site the following month, arresting him at the same time.

One of the officers, Calaveras County Sheriffs Lieutenant Brian Walker, counted 382 marijuana plants growing in two gardens, one containing smaller plants in greenhouses and the other larger plants in both the ground and in garbage sacks. At various places around the site, Walker also found six-and-one-half pounds of dried marijuana in half-pound baggies deposited in buckets, as well as marijuana seeds in bags. Finally, Walker found in a nearby shed evidence of defendant's involvement in the marijuana cultivation. This included defendant's wallet, which contained an identification card, a business card for a "cannabis consultant," and a handwritten note calculating grams and pounds of marijuana.

II. The Legal Proceedings

Defendant was charged with marijuana cultivation (§ 11358) in count I and possession of marijuana for sale (§ 11359) in count II.

Defendant raised two affirmative defenses: the common law defense of medical necessity and the limited immunity afforded under Proposition 215.

But the People moved in limine to exclude both defenses, requesting a preliminary hearing to determine whether the evidence was sufficient to present such defenses to the jury.

Over defendant's objections, the trial court granted the request for a hearing under Evidence Code section 402, subdivision (b),³ stating that "because of the novelty of the defenses in this case ... a 402 hearing ... is necessary to avoid the prejudicial effect upon jurors ... of actually hearing evidence if it is going to be ultimately excluded by the court." Defense counsel proceeded by an offer of proof, seeking to demonstrate an evidentiary foundation for the defenses.

The court disallowed the common law defense of medical necessity, ruling that defendant had failed to make a sufficient showing of the elements of such a defense. But the trial court did grant defendant's request to instruct the jury on the limited immunity available under Proposition 215. Nonetheless, the court limited that defense to defendant's cultivation and possession of marijuana for his personal medical use and declined to extend the defense to the cultivation of marijuana for the Oakland Cooperative, finding that Proposition 215 did not support defendant's assertion that he was the "primary caregiver" of the Cooperative's members and thus eligible for the exemption under the proposition. The court ultimately instructed the jury on the statutory defense afforded by Proposition 215 by using CALJIC No. 12.24.1, rather than defendant's proposed instruction.

Separately, the trial court denied defendant's motion to dismiss the charges based on the due process clause of the Fourteenth Amendment, which motion contended that defendant had been "deprived [of] fair notice as to what constitute] illegal activity" under section 11362.5. The court later refused defendant's proposed jury instruction regarding the absence of such notice.

Ultimately, the jury convicted defendant of marijuana cultivation (§ 11358), but deadlocked on the second count of possession for sale (§ 11359). The People then filed an amended information, adding a third count of possession of more than 28.5 grams of marijuana (§ 11357, subd. (c)), to which defendant pleaded guilty in exchange for a dismissal of the deadlocked count. The court granted defendant five years' probation on terms and conditions that included nine months in the county jail.

On appeal, defendant contends that:

(1) The court erred by holding a preliminary hearing to determine the admissibility of the evidence for defendant's proposed defenses (2) It erred by finding that defendant failed to proffer sufficient evidence to warrant a jury instruction for his defense of medical necessity;

(3) It improperly failed to extend Proposition 215 to exempt from prosecution those who supply medicinal cannabis to patients and caretakers; and

(4) It erroneously refused to instruct the jury that the defendant must be acquitted if Proposition 215 failed to give him fair notice as to what constituted illegal conduct.

DISCUSSION

I. Evidence Code Section 402 Hearing

Defendant first argues that "[t]he trial court erred in its ruling ordering an evidentiary hearing under Evidence Code [section] 402 to review [defendant's]...