People v. Onesra Enters., Inc.

• Decision Date: 19 December 2016
• Docket Number: BR 052596
• Court: California Superior Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. ONESRA ENTERPRISES, INC. and Anna Tyutina, Defendants and Appellants.

7 Cal.App.5th Supp. 7

212 Cal.Rptr.3d 860

The PEOPLE, Plaintiff and Respondent,

v.ONESRA ENTERPRISES, INC. and Anna Tyutina, Defendants and Appellants.

BR 052596

Appellate Division, Superior Court, LOS ANGELES COUNTY.

Filed December 19, 2016

Law Offices of Stanley H. Kimmel and Stanley H. Kimmel ; Alison Minet Adams, Studio City, for Defendants and Appellants.

Michael N. Feuer, City Attorney, City of Los Angeles, Asha Greenberg, Assistant City Attorney, and John R. Prosser, Deputy City Attorney, for Plaintiff and Respondent.

OPINION

B. Johnson, J.

INTRODUCTION

Following a court trial, defendants Anna Tyutina and Onesra Enterprises, Inc. were convicted of violating, on August 27 and 28, 2013, Los Angeles Municipal Code (LAMC) sections 45.19.6.2, subdivision A,¹ which prohibits operating or participating in a medical marijuana business (MMB),² and 12.21, subdivision A.1(a),³ which prohibits using a building, land, or structure for an unpermitted use. Defendants raise a variety of contentions on appeal: (1) the trial court erred in denying their Penal Code section 1118 motion for judgment of acquittal; (2) they proved by a preponderance of the evidence that they qualified for a limited immunity under LAMC section 45.19.6.3; (3) the instant prosecution was barred by tax amnesty and state preemption of marijuana laws; (4) the action was improperly prosecuted as a "nuisance" violation; and (5) the court committed structural error in limiting closing argument. We affirm.

BACKGROUND FACTS

Prosecution witnesses Los Angeles Police Department Detective Ruben Moreno and his partner Officer Lucerito Rodriguez testified that on August 27 and 28, 2013, they were doing a "compliance check" and investigating Euphoric Caregivers, located at 10655 West Pico Boulevard. Rodriguez testified Euphoric was not on the "Prop. D list" of MMB's which were "probably" in compliance with Proposition D. On the above dates, the officers made contact with customers who were seen entering and existing the storefront. The customers admitted to purchasing marijuana from Euphoric; presented their medical marijuana card or a doctor's recommendation for marijuana; and showed the officers the marijuana they purchased at Euphoric. The officers formed the opinion that Euphoric was distributing marijuana to qualified patients. Rodriguez testified she did not determine whether Euphoric had a business tax registration certificate (BTRC) or "any licensed required by the City" as part of her investigation.

Valentino Powell testified that either on August 27 or August 28, 2013, he purchased marijuana with a physician's recommendation at Euphoric and that he was served by Gabriel Davis. When asked whether he knew Tyutina and whether she "typically" served him at Eurphoric, Powell answered, "No."⁴

At the close of the People's case-in-chief, on September 15, 2015, the defense made a motion for judgment of acquittal under Penal Code section 1118. Defense counsel argued that the People's evidence failed to prove that defendants operated an MMB without the proper licenses required under section 12.21 and there was no evidence that Tyutina operated Euphoric on the charged dates. The court denied the motion.

Defense witness Gabriel Davis testified he was hired by either Tyutina or her stepfather, Arsen Ordoukhanian, in 2007 to distribute marijuana at Euphoric.⁵ Davis testified that either Tyutina or her stepfather was the CEO of Onesra, and that only Tyutina and her stepfather were signers on Onesra's checking account. Davis identified defense exhibit J as a check bearing Tyutina's signature. Davis also identified defense exhibit D as the "original 2007 registration for taxation for medical marijuana." Davis testified that Onesra had both an "L044 license and [a] L050 license" which were renewed by the payment of taxes each year. He also testified Onesra received a bill for its "Measure M" license which was paid, and that Onesra had tax amnesty. Davis identified numerous defense exhibits that were admitted in evidence.

DISCUSSION

Proposition D, approved by the voters in 2013, added article 5.1 (LAMC, § 45.19.6 et seq.) to chapter IV of the LAMC to regulate MMB's. LAMC section 45.19.6.2, subdivision A, makes it "unlawful to own, establish, operate, use or permit the establishment or operation of a[n] [MMB] ..." in the city. LAMC section 45.19.6.3, however, provides an exception or limited immunity for MMB's "that meet a litany of requirements...." (Safe Life Caregivers v. City of Los Angeles (2016) 243 Cal.App.4th 1029, 1037, 197 Cal.Rptr.3d 524 (Safe Life ).)

Penal Code Section 1118 Motion

On appeal, defendants contend the trial court erred in denying their Penal Code section 1118 motion. " Section 1118 was designed to terminate a prosecution for an offense or offenses at the earliest possible time when the prosecution's own evidence is insufficient to support a conviction. [Citations.]" (People v. Norris (2002) 95 Cal.App.4th 475, 479, 115 Cal.Rptr.2d 540.) " Section 1118... establishes a procedure for summary acquittal when the prosecution presents insufficient evidence of a criminal charge during its case-in-chief. It provides in relevant part, ‘In a case tried by the court without a jury ... the court on motion of the defendant or on its own motion shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading after the evidence of the prosecution has been closed if the court, upon weighing the evidence then before it, finds the defendant not guilty of such offense or offenses.’ " (Id . at p. 478, 115 Cal.Rptr.2d 540.)

LAMC section 12.21, subdivision A.1(a)

LAMC section 12.21, subdivision A.1(a), provides that it is illegal to maintain or use a building or structure "for any use other than is permitted in the zone in which such building, structure, or land is located and then only after applying for and securing all permits and licenses required by all laws and ordinances." (Italics added.)

Here, prosecution witnesses testified that Onesra was operating an MMB, and defendants do not dispute that the operation of an MMB is not a permitted use under the city's zoning code. Contrary to defendants' claim, however, the People were not required to present evidence of "permits and licenses" as part of their case-in-chief. The permits and licenses referred to in LAMC section 12.21, subdivision A.1(a), are those that legally permitted businesses must obtain in order to operate. (See Art. 2, Specific Planning—Zoning Comprehensive Zoning Plan, § 12.00 et seq.) They are not the ones required to qualify for limited immunity under LAMC section 45.19.6.3. Such proof must be made by a defendant as part of his affirmative defense. (See People v. West Valley Caregivers, Inc. (2015) 242 Cal.App.4th Supp. 24, 35–36, 196 Cal.Rptr.3d 82.)

Tyutina

We also reject the claim that there was insufficient evidence to support the LAMC sections 45.19.6.2, subdivision A, and 12.21, subdivision A.1(a), charges against Tyutina. A corporate officer is subject to criminal prosecution whenever he or she knowingly participates in the corporation's illegal conduct. ( People v. Toomey (1984) 157 Cal.App.3d 1, 15, 203 Cal.Rptr. 642.) Although there was no testimony by the officers as to Tyutina's involvement in the MMB, the People submitted exhibits in support of their case-in-chief against her. None of these trial exhibits, however, were transmitted to this court (see Cal. Rules of Court, rule 8.870 ),⁶ and we must presume they would have supported the court's order denying the section 1118 motion as to her. (See People v. Leonard (2014) 228 Cal.App.4th 465, 478, 175 Cal.Rptr.3d 300 [" ‘ "order of the lower court is presumed correct . All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown" ’ "].)

Immunity—LAMC Section 45.19.6.3, Subdivision E

In regard to LAMC section 45.19.6.2, the trial court determined defendants did not qualify for immunity under LAMC section 45.19.6.3 because they failed to satisfy the registration requirement set forth in subdivision E—they were required to obtain a business tax registration for taxation as a medical marijuana collective in 2011 and 2012 and failed to do so. The court further found that the BTRC issued to Onesra in 2013 did not prove that the above requirement was satisfied. The court stated, "the law is clear; the statute is clear. A [BTRC] for a medical marijuana business had to be obtained in 2011 or 2012. And it wasn't done here. And on that basis alone, the court finds that beyond a reasonable doubt that Onesra is guilty of violating ... section 45.19.6.2...."

"Limited immunity from prosecution under LAMC section 45.19.6.2, subdivision A, is unavailable as an affirmative defense where the MMB violates any of 15 restrictions set forth in LAMC section 45.19.6.3." (People v. Trinity Holistic Caregivers, Inc. (2015) 239 Cal.App.4th Supp. 9, 16, 191 Cal.Rptr.3d 846 (Trinity ).) LAMC section 45.19.6.3, subdivision E, provides: "Every [MMB] is prohibited that failed or fails to: (i) obtain a City business tax registration for taxation as a medical marijuana collective in 2011 or 2012, and (ii) renew that business tax registration within 90 days of the effective date of this Article and before each annual renewal deadline thereafter."

Defendants contend they should have been acquitted because they proved by a preponderance of the evidence that they qualified for the limited immunity in LAMC section 45.19.6.3. They maintain that at trial they presented a BTRC issued to "Onesra Enterprises Euphoric Caregivers Proposition 215," and that this registration was renewed by the payment of tax for each subsequent year, including 2011 and 2012.

We cannot adequately assess this claim because the trial exhibits were not transmitted to this court. In criminal appeals, "[e]xhibits admitted in evidence, refused, or lodged are deemed part of the record, but...