People v. Jackson
| Decision Date | 20 November 2012 |
| Docket Number | No. D058988.,D058988. |
| Citation | 148 Cal.Rptr.3d 375,210 Cal.App.4th 525 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Jovan Christian JACKSON, Defendant and Appellant. |
210 Cal.App.4th 525
148 Cal.Rptr.3d 375
2012 Daily Journal D.A.R. 14,781
The PEOPLE, Plaintiff and Respondent,
v.
Jovan Christian JACKSON, Defendant and Appellant.
No. D058988.
Court of Appeal, Fourth District, Division 1, California.
Oct. 24, 2012.
As Modified on Denial of Rehearing Nov. 20, 2012.
See 2 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against Public Peace and Welfare, § 14.
[148 Cal.Rptr.3d 376]
Americans For Safe Access and Joseph D. Elford, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael R. Johnsen and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
Bonnie M. Dumanis, District Attorney of San Diego County, Laura Tanney, Craig E. Fisher and Christopher Lindberg, Deputy District Attorneys, Amicus Curiae on behalf of Respondent.
BENKE, Acting P.J.
[210 Cal.App.4th 529]Defendant and appellant Jovan Christian Jackson was charged with the sale of marijuana and possession of marijuana for sale. Prior to his trial the People filed a motion under Evidence Code section 402 for an order preventing him from offering evidence he was entitled to the defense provided by the Medical Marijuana Program Act (MMPA), Health & Safety Code 1 section 11362.7 et seq. to patients who associate for the purpose of collectively cultivating medical marijuana.
[148 Cal.Rptr.3d 377]
At the hearing on the People's motion, Jackson testified he, and approximately five other individuals, were actively engaged in cultivating marijuana and providing it to themselves and the approximately 1,600 other members of their medical marijuana collective. Jackson testified each member of the collective was required to show proof marijuana had been prescribed to the member by a medical professional for treatment of a medical condition. Jackson further testified the collective did not generate any profits for either himself or the other active participants. Jackson offered no testimony with respect to how the collective was governed.
The trial court found Jackson presented sufficient evidence the collective's members were qualified patients within the meaning of the MMPA and the collective was not operated on a for profit basis. However, the trial court found that in light of the large number of members of the collective, Jackson could not establish the collective was operated for the purpose of collectively cultivating marijuana within the meaning of the MMPA as opposed to simply distributing marijuana. Thus, the trial court granted the People's motion and prevented Jackson from offering any defense under the MMPA. Jackson was convicted and the trial court imposed three years of formal probation.
We reverse Jackson's conviction. In opposing the People's motion, Jackson's burden was not very great. Jackson was only required to produce evidence which would create a reasonable doubt as to whether the defense provided by the MMPA had been established. The defense the MMPA provides to patients who participate in collectively or cooperatively cultivating marijuana requires that a defendant show that members of the collective or cooperative: (1) are qualified patients who have been prescribed marijuana for medicinal purposes, (2) collectively associate to cultivate marijuana, and (3) are not engaged in a profit-making enterprise. As we interpret the MMPA, the collective or cooperative association required by the act need not include active participation by all members in the cultivation process but may be [210 Cal.App.4th 530]limited to financial support by way of marijuana purchases from the organization. Thus, contrary to the trial court's ruling, the large membership of Jackson's collective, very few of whom participated in the actual cultivation process, did not, as a matter of law, prevent Jackson from presenting an MMPA defense.
However, we also recognize that in determining whether a MMPA defense has been established, a trier of fact must consider whether the organization operates as a for profit enterprise or is a nonprofit enterprise operated for the benefit of its members. In resolving that question, an organization's large membership and governance processes, if any, are relevant.
As we explain, where, as here, a collective has a large membership, the overwhelming number of whom do not, in any fashion, participate in the operation or governance of the collective and there is evidence of a high volume of purchases by the members, a trier of fact could reasonably conclude that, notwithstanding Jackson's testimony to the contrary, the organization is a profit-making enterprise which distributes marijuana to customers rather than to members of a nonprofit collective organization and is therefore outside the scope of the defense offered by the MMPA. Thus, on remand, the jury should be instructed that in determining whether Jackson is entitled to a defense, the jury must determine whether the collective he participates in is a profit-making enterprise and further that in resolving that question, it should consider, in addition to other evidence of profit or loss, the size of
[148 Cal.Rptr.3d 378]
the collective's membership, the volume of purchases from the collective and the members' participation in the operation and governance of the collective.
Jackson has been prosecuted twice with respect to his operation of a medical marijuana dispensary operating under the name Answerdam Alternative Care (Answerdam). In 2009 Jackson was acquitted of five counts related to the possession and sale of marijuana. At Jackson's first trial, the jury was instructed with respect to the defense for marijuana collectives and cooperatives provided by the MMPA, in pertinent part, as follows: “A person is not guilty of the crimes charged in Counts 1–5 if his actions are exempted under the Medical Marijuana Program. The Medical Marijuana Program provides that qualified patients [and their designated primary caregivers] may associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes.
“A qualified patient is someone for whom a physician has previously recommended or approved the use of marijuana for medical purposes. [¶] ... [¶]
[210 Cal.App.4th 531]“ Collectively means involving united action or cooperative effort of all members of a group.
“ Cooperatively means working together or using joint effort toward a common end.
“ Cultivate means to foster the growth of a plant.
“If you have reasonable doubt about whether, at the time of the crimes charged in Counts 1–5, the defendant was a qualified patient [or primary caregiver], and that he committed the crimes solely because he was associating within the State of California in order collectively or cooperatively to cultivate marijuana, you must find the defendant not guilty.”
Following Jackson's first trial, the jury foreman explained the difficulty the jury faced in determining whether Jackson was entitled to an MMPA defense: “[I]t was all contingent on the medical marijuana defense and the lack of definition within the state law as far as what constitutes a collective or a cooperative.... So, um, just for the lack of definition of that state law was really the key. [¶] ... [¶] Um, the prosecution gave his ... kind of narrow definition during the, the closing arguments, but there was nothing in the law that really backed that up.”
While the initial charges against Jackson were still pending, law enforcement agencies continued to investigate Jackson and Answerdam. Following his acquittal at the first trial, Jackson was charged in a new information with one count of the sale of marijuana (§ 11360, subd. (a)) and two counts of possession of marijuana for sale (§ 11359). Those allegations were based on activity which occurred after the conduct which gave rise to the first trial.
As we indicated at the outset, prior to trial on the second information, the People moved under Evidence Code section 402 for an order preventing Jackson from offering an MMPA defense. At the hearing one of the investigators testified he never observed any cultivation taking place at the Answerdam dispensary. A member of the collective testified that although he purchased marijuana at the dispensary, he never saw it being grown there and he never participated in its cultivation.
For his part Jackson testified at the Evidence Code section 402 hearing that marijuana for Answerdam was grown at
[148 Cal.Rptr.3d 379]
another location, that he and four or five other members of the collective took part directly in cultivating the marijuana and that each member of the collective was required to produce a physician's recommendation that they use marijuana to treat a diagnosed [210 Cal.App.4th 532]illness or condition. According to Jackson, at one time or another approximately 1,676 qualified patients had joined Answerdam by way of paying a membership fee and signing a membership form. Jackson further testified that Answerdam was not a profit-making business and that he and others were paid only for the expenses they incurred in cultivating marijuana and operating the dispensary. Jackson conceded that there were no meetings of the Answerdam membership and no attempts to contact them with respect to operation of the collective.
In considering the People's motion, the trial court found there was not enough information to determine whether Answerdam was operated as a for profit enterprise and therefore the trial court would not rely on that factor in ruling on the People's motion. In nonetheless granting the motion and excluding evidence of the defense, the trial court stated: “So assuming there was cultivation going on and that at least some members were involved, that still leaves us with the evidence that was presented that there were well over 1,000 people...
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