People v. Michael Tu

• Decision Date: 19 September 2011
• Docket Number: B226841
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. MICHAEL TU, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL TU, Defendant and Appellant.

B226841

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE

Filed: September 19, 2011

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County

Super. Ct. No. KA089223)

APPEAL from an order of the Superior Court of the County of Los Angeles, Steven D. Blades, Judge. Dismissed, in part, and affirmed.

Law Offices of Eric D. Shevin, Eric D. Shevin, and Stephen J. Fisch for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael R. Johnsen and Eric E. Reynolds, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

Following a jury trial, defendant and appellant Michael Tu (defendant) was convicted of cultivating marijuana and placed on probation for three years. On appeal, he raises numerous challenges to his conviction, one of which is from a nonappealable order and the remainder of which, as explained below, have no merit. We therefore dismiss defendant's appeal from the nonappealable order and otherwise affirm the judgment of conviction.

FACTUAL BACKGROUND

Gordon McIntosh¹ was a property manager for "commercial properties and small offices." One of the buildings he managed, located at 1535 West McKinley Street in the City of Azusa (McKinley building), had 19 units, each approximately 1000 square feet, with small offices and roll-up doors. In 2009, McIntosh leased Unit No. 6 in that building to defendant.

On November 11, 2009, McIntosh received a telephone call from the tenant in Unit No. 5 of the McKinley building, which unit was adjacent to Unit No. 6. The tenant reported that there was an "emergency problem" because "water [was] pouring into the warehouse from underneath the wall." McIntosh drove to Azusa and, during the drive, called defendant at the two contact numbers defendant had provided, leaving messages informing defendant of the flooding in Unit No. 5 and that McIntosh would be using his key to enter Unit No. 6 in an attempt to discover the source of the flooding. In the messages, McIntosh characterized the flooding as an "emergency situation."

When McIntosh arrived at the McKinley building, he entered Unit No. 5 in an attempt to discover the source of the water leak. McIntosh observed "[a] whole lot ofwater . . . coming in right under the floor plate from the adjoining unit . . . ." He assumed it was coming from Unit No. 6, but later discovered that it was coming from Unit No. 7.²McIntosh entered Unit No. 6 and saw "this big old greenhouse that somebody had built in that warehouse area." The greenhouse was "full of marijuana plants . . . about four-feet high."³

In addition to the marijuana plants, McIntosh saw a humidifier, "special lights, [and] a little table just outside the greenhouse with all the growing chemicals . . . ." It appeared to McIntosh that defendant had "tapped into the electrical panel and ran a bunch of Romex electrical wire all along the floor." McIntosh also observed that "someone had built something underneath the bathroom sink so . . . a hose [could be attached] to it, and there was a hose running from underneath [the sink] into a large trash can that was full of liquid." McIntosh "assumed that the trash can had sprung a leak and that was the source of the water damage . . . ." He immediately went outside and called the City of Azusa Police Department. When the police arrived, McIntosh told them what he had observed in Unit No. 6 and why he was concerned.

City of Azusa Police Detective Chris Franks worked as a narcotics detective and had substantial training and experience investigating the cultivation and sale of marijuana. On November 13, 2009, at 2:00 a.m., he responded to the call by going to the McKinley building,⁴ which was located in an industrial park and had nine adjacent storage units. Before arriving at the McKinley building, Detective Franks reviewed therental agreement for Unit No. 6,⁵ and noted that it had been rented to defendant for the purpose of storing auto body replacement parts.

Upon entering Unit No. 6, Detective Franks made the following observations: "Once [the detective left] the office area, directly to the right [was] a bathroom in another small little room, and then there [were two] . . . 55 gallon trash cans and then a table. In one of the trash cans was a little amount of water with some rubber tubing coming out of it, and at the bottom there . . . appeared to be a pump. [¶] Directly to the left of those trash cans was the door leading into the growing room. And . . . down the hallway . . . there [were] some tables there with a bunch of plant foods and items used to grow plants.

When [he] walk[ed] into the grow room to [the] left, [he] saw some fans on the floor, [and] there was a carbon dioxide tank, which [he explained was] very common [because] growers . . . introduce carbon dioxide into the growing atmosphere to help the plants grow quicker. There [were] nine high intensity lights . . . [with] 1000 watt light bulbs specially designed that were hanging over 145 marijuana plants. Each of the plants was individually planted into its own plastic container. There was ductwork that [was] above the lights and [it] looked like [the growers] were trying to keep the high temperature down by introducing a cooling atmosphere because the high intensity lights put off a lot of light, so you want to keep the temperature down. [I]f [the temperature] goes above 90 degrees that stops the growing period for the plant. [B]etween 68 and 72 is the best temperature, but obviously [it] can go a little higher than that. [¶] And [when he walked] down the hallway[,] . . . lying on the floor there [were also] numerous bags of plant soil . . . . There [were] wires coming from the junction box which led to outlets, and attached to those outlets were ballasts, and the ballasts were plugged into the high intensity lights. So the [room had] nine ballasts and nine high intensity lights. Each ballast would control one of the high intensity lights."

The only documents provided to Detective Franks concerning defendant's claim that the marijuana was grown for approved medical purposes were a one-page "medical marijuana recommendation" and the lease agreement for Unit No. 6. The medical marijuana recommendation had defendant's name and a physician's name on it, but it did not identify the illness for which the marijuana was recommended, the dosage amount of marijuana recommended, or the frequency with which the marijuana was to be taken. And in the lease agreement there was no indication that any person other than defendant was obligated under the lease. Moreover, although the lease required defendant to obtain from the property manager approval for any alterations or additions to the leased premises, Detective Franks did not receive any documentation or other information that such approval had been obtained for the substantial alterations to Unit No. 6 that were made to facilitate the growing operation.

During the investigation, Detective Franks did not find any of the typical evidence indicating that the marijuana was possessed for sale, such as "pay and owe sheets," scales, or packaging materials. Nevertheless, he opined that the marijuana was possessed for sale based on the number of plants recovered, i.e., 145. According to Detective Franks, based on the type of harvest operation he observed in Unit No. 6 and the amount of marijuana recovered, defendant's operation conservatively could have yielded six harvests a year for an annual total of 54 pounds of marijuana.

Fred Hamann, Daniel Sagon, William Tsui, and William Britt, testified on behalf of defendant. Hamann was a medical marijuana patient who ingested marijuana to control the severe pain he suffered following a serious fall. When Hamann was in significant pain, he ingested up to half a pound of marijuana per month. He signed an agreement to join defendant's medical marijuana collective in September 2009. Defendant was the coordinator of the collective, and all the members of the collective were going to share the expenses.

Sagon was a medical marijuana patient who used marijuana to relieve his migraine symptoms. He discussed joining the collective with defendant in September 2009 and thereafter signed a membership agreement that provided that the marijuana was formedical use only and could not be sold to persons who were not members of the collective. Sagon contributed labor to the operation and all the members were to contribute to the costs of the growing operation.

William Tsui was a medical marijuana patient with a physician's recommendation to use marijuana for migraine symptoms. He joined the collective in September 2009. He contributed labor to the operation and understood that once the marijuana was harvested, all the expenses of the operation would be divided among the members.

William Britt was an expert in, inter alia, marijuana cultivation and marijuana dosages. Among other things, he explained that there was no legal definition for a medical marijuana collective, but the Attorney General's guidelines for collectives required that a collective be an association of persons that must be run like a business. According to Britt, marijuana growers often grow more than they need because not all of the plants will mature. As a general rule, growers may plant as many as twice the number of plants they anticipate they will need. Britt opined that the 145 plants recovered from defendant's unit would yield three pounds per harvest and that amount would satisfy the needs of...