People v. Peck

• Decision Date: 30 December 1996
• Docket Number: No. E016630,E016630
• Citation: 52 Cal.App.4th 351,61 Cal.Rptr.2d 1
• Court: California Court of Appeals Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 654, 97 Daily Journal D.A.R. 1003 The PEOPLE, Plaintiff and Respondent, v. Gregory PECK, Defendant and Appellant.

Page 1

61 Cal.Rptr.2d 1

52 Cal.App.4th 351, 97 Cal. Daily Op. Serv. 654,

97 Daily Journal D.A.R. 1003

The PEOPLE, Plaintiff and Respondent, v. Gregory PECK, Defendant and Appellant.

No. E016630.

Court of Appeal, Fourth District, Division 2, California.

Dec. 30, 1996.

Review Denied March 26, 1997.

[52 Cal.App.4th 355] George A. Hunlock, under appointment by the Court of Appeal, San Diego, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Garrett Beaumont and Esteban Hernandez, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

RICHLI, Associate Justice.

Defendant is a member of a church which uses marijuana as a sacrament. He was convicted of transportation of more than 28.5 grams of marijuana in violation of Health and Safety Code section 11360, subdivision (a), and of possession of marijuana for sale in violation of section 11359 of that Code. His principal contention is that the court erred in rejecting his defense based on his right of free exercise of religion.

I FACTUAL AND PROCEDURAL BACKGROUND

Defendant was apprehended at the Border Patrol checkpoint in Temecula driving a car with 40 pounds of marijuana in the trunk. The marijuana was divided into bags of about one pound each. Cash in the amount of $2,350 was found under the dash cover. The wholesale value of the marijuana was about $40,000.

Defendant is president and a priest of the Israel Zion Coptic Church (IZCC). The IZCC has about 200 or 250 members. The IZCC is an offshoot of the Ethiopian Zion Coptic Church, commonly known as the Rastafarians.

The IZCC uses marijuana as a sacrament. The purpose of using the marijuana is to make the users aware of their sins. Typically, marijuana would be used approximately three times a day.

Defendant had grown marijuana for use in the IZCC, but had been criminally prosecuted and convicted for it. (See State v. Peck (1988) 143 Wis.2d 624, 422 N.W.2d 160.) Defendant and the other members of the IZCC then began buying small amounts of marijuana in Wisconsin for church use, but considered it too expensive. Therefore, defendant and two other members contributed a total of about $30,000, so that defendant could buy a large quantity of marijuana in San Diego, where defendant had grown up. Defendant was returning to Wisconsin when he was stopped.

The court, sitting without a jury, found defendant guilty of transportation of and possession for sale of marijuana. Although it found that a principal tenet of defendant's religion was the use of marijuana, it concluded the specific conduct for which defendant was convicted was incidental to, not an integral part of, the practice of his religious beliefs. The court sentenced defendant to five years probation, conditioned on 240 days in custody.

II DISCUSSION

A. Sufficiency of Evidence of Intent to Sell

Possession of illegal drugs for sale requires that the defendant have the intent to sell the drugs. (In re Christopher B. (1990) 219 Cal.App.3d 455, 466, 268 Cal.Rptr. 8.) During grand jury proceedings, which the parties stipulated the court could consider at trial, a sheriff's investigator gave the opinion that defendant possessed the marijuana for sale, based on the quantity. Such an opinion is sufficient to support a conviction of possession for sale. (People v. Newman (1971) 5 Cal.3d 48, 53, 95 Cal.Rptr. 12, 484 P.2d 1356, disapproved on another point in People v. Daniels (1975) 14 Cal.3d 857, 862, 122 Cal.Rptr. 872, 537 P.2d 1232.)

Defendant argues the evidence of intent to sell was insufficient, despite the officer's opinion, because defendant testified without contradiction he intended only to give the marijuana away, not to sell it. We find the evidence sufficient, for at least two reasons. First, defendant testified that when he provided marijuana for use in the church, members were "free and welcomed to put some money in" towards the cost of the marijuana, and that they did so from time to time. A sale of an illegal drug is "a transfer of possession of such a drug to another for cash." (People v. Daniels, supra, 14 Cal.3d 857, 859, 122 Cal.Rptr. 872, 537 P.2d 1232.) At least with respect to the members who contributed money, defendant made such a transfer. The court reasonably could infer defendant intended to follow the same practice with respect to the marijuana he bought in California.

Second, a "sale" of drugs "includes transfers other than for money." (People v. Lazenby (1992) 6 Cal.App.4th 1842, 1845, 8 Cal.Rptr.2d 541.) The record shows defendant received a quantity of marijuana himself, over and above the amount he paid for with his own money, in return for providing it to the other members. Defendant testified that if he had not been apprehended, he would have received more than one-quarter of the marijuana, despite the fact he paid less than one-quarter of the total price, for getting the marijuana. Receiving a valuable commodity--here, the additional marijuana beyond the amount defendant paid for--in return for providing the commodity to another qualifies as a sale under Lazenby.

B. Free Exercise of Religion

Defendant contends his conviction is invalid because the prosecution failed to show the laws he violated were supported by a compelling state interest. He characterizes his claim as one arising under the "free exercise" clause of the First Amendment to the United States Constitution. ¹

In Employment Division v. Smith (1990) 494 U.S. 872, 879, 110 S.Ct. 1595, 1600, 108 L.Ed.2d 876, the Supreme Court held that "the right of free exercise does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).' " (494 U.S. at p. 879, 110 S.Ct. at p. 1600.) The court held the free exercise clause did not prohibit Oregon from denying unemployment benefits to employees who were dismissed on account of their religiously inspired use of peyote, because the law prohibiting peyote use was a valid and neutral law of general applicability. (Ibid.) It further held the state was not required to demonstrate a compelling governmental interest In reaction to Employment Division v. Smith, Congress enacted the Religious Freedom Restoration Act (RFRA). (42 U.S.C. § 2000bb et seq.) RFRA provides that government, including a state, "shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability," unless application of the law is the "least restrictive means" of furthering a "compelling governmental interest." (42 U.S.C. § 2000bb-1(a), (b).) RFRA further provides that "[a] person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government." (42 U.S.C. § 2000bb-1(c).)

outweighing the employees' right of free exercise. (494 U.S. at p. 885, 110 S.Ct. at p. 1603.)

RFRA "does not present itself as an interpretation of the Constitution overruling [Employment Division v.] Smith; rather it consists of a command that must be followed as a matter of federal law." (U.S. v. Bauer (9th Cir.1996) 84 F.3d 1549, 1558.) Consequently, the holding of Employment Division v. Smith, supra, that a neutral law of general application need not be supported by a compelling state interest, continues to govern First Amendment jurisprudence. (U.S. v. Meyers (10th Cir.1996) 95 F.3d 1475, 1481; see Smith v. Fair Employment and Housing Commission (1996) 12 Cal.4th 1143, 51 Cal.Rptr.2d 700, 913 P.2d 909, (plur. opn. of Werdegar, J.).) Since defendant's argument here is based on his contention there is no compelling state interest, if he has a claim at all it arises under RFRA, not the First Amendment.

The California Supreme Court considered RFRA at length in Smith v. Fair Employment and Housing Commission, supra, 12 Cal.4th 1143, 51 Cal.Rptr.2d 700, 913 P.2d 909. The court concluded RFRA did not permit a property owner to refuse to rent to unmarried couples, in violation of antidiscrimination laws, despite her claim that to comply with the laws would violate her religious beliefs. The plurality opinion concluded the state was not required to demonstrate a compelling state interest, because the laws did not substantially burden the owner's free exercise of religion. ² Looking to cases predating Employment Division v. Smith, supra, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876, the plurality opinion cited the following factors in support of its conclusion: First, the owner's religious beliefs did not require that she rent the property at all; thus, she could avoid any burden posed by the antidiscrimination laws by selling the property and investing in something else. Second, the burden of selling the property and reinvesting amounted, at most, to an economic cost which "does not equate to a substantial burden for purposes of the free exercise clause." (12 Cal.4th at p. 1172, 51 Cal.Rptr.2d 700, 913 P.2d 909.) Finally, exempting the owner from the antidiscrimination laws "would necessarily impair the rights and interests of third parties," i.e., unmarried cohabitants. (12 Cal.4th at p. 1176, 51 Cal.Rptr.2d 700, 913 P.2d 909.)

Although Smith v. Fair Employment and Housing Commission, supra, 12 Cal.4th 1143, 51 Cal.Rptr.2d 700, 913 P.2d 909, is a plurality opinion, we find its discussion of the "substantial burden" requirement under RFRA to be highly persuasive, and we elect to follow it here. Applying that analysis, we conclude the laws under which defendant was convicted do not substantially burden his free exercise of religion. First, to constitute a substantial burden under RFRA, the challenged law must constitute "an interference with a tenet or belief that is central to religious doctrine." (Goehring...