People v. Roberts, C053705 (Cal. App. 8/28/2008)
| Decision Date | 28 August 2008 |
| Docket Number | C053705 |
| Parties | THE PEOPLE, Plaintiff and Appellant, v. MICHAEL GEORGE ROBERTS, Defendant and Respondent. |
| Court | California Court of Appeals Court of Appeals |
Appeal from the Sup.Ct. No. CM023868.
The People appeal from an order reducing a conviction for felony transportation of marijuana to misdemeanor possession pursuant to Penal Code section 1181.1 The Attorney General contends the felony verdict was not contrary to the law or the evidence. The evidence was undisputed that defendant was transporting a pound and a half of marijuana, a half-pound more than permitted under Butte County guidelines for medical marijuana.2 There was no evidence that defendant was the primary caregiver for another qualified patient; therefore, he was not permitted to transport medical marijuana for another and the verdict was not contrary to the law or evidence. We reverse the order.
Early in the morning of October 16, 2005, defendant arrived at the Chico substation, agitated and yelling that he lost his dogs and his marijuana. When defendant threatened to break into the pound to recover his dogs, the police told him he would be arrested. Defendant threatened "to do violence to the [district attorney]."
Later that day, Detective Eric Christopher was called out to a residence in Nelson to do a welfare check. He found Lee Ann Garrabrant, who was upset and had finger marks on her neck. Garrabrant lived with defendant; both had physician recommendations for marijuana and grew it together.3 She wanted to leave and appeared to be looking for defendant's return.
Sergeant Tom Coleman was on patrol that night and received a call to be on the lookout for defendant in his brown pickup truck. Coleman located defendant at the Butte Creek trestles between Nelson and Durham. Defendant was speeding. Coleman made a U-turn, activated his lights and siren, and pursued defendant. He followed defendant into the town of Nelson. Defendant violated various traffic laws and eventually stopped in his driveway. Defendant then struggled with the officers, so Coleman and his partner fired their tasers and defendant went to the ground. Defendant said he did not stop when pursued because he did not trust cops and was afraid of them.
Deputy Douglas Patterson arrived at the scene and searched defendant's truck. Before he even entered it, he smelled a strong odor of marijuana and said, "it smells like weed." Defendant said the marijuana was his and he had Prop 215. Inside the truck were eight packages of marijuana, totaling 1.593 pounds. Under Butte County guidelines, a person can possess a pound of processed marijuana for medicinal uses.
Defendant was charged with three felonies: corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)), transporting more than 28.5 grams of marijuana (Health & Saf. Code, § 11360, subd. (a)), and recklessly evading a peace officer (Veh. Code, § 2800.2, subd. (a)). It was alleged he had three prior prison terms and two strikes.
At trial, defendant's cousin, Richard Wood, testified he also had a recommendation for medical marijuana and grew marijuana with defendant at defendant's residence in Nelson. On October 16, the marijuana was harvested and they were going to weigh it to comply with the county guidelines permitting one pound per person. Defendant came to Wood's house in Durham for that purpose, but Wood had unexpected company, so they could not weigh it then. Defendant left with the marijuana. The marijuana was to be split three ways between defendant, Wood, and Garrabrant.
The trial court instructed the jury:
In closing argument, the prosecutor argued the Compassionate Use Act allows you to carry some marijuana if you have a recommendation, but the amount must be reasonably related to current medical needs. She argued a pound and a half exceeded any dosage defendant would need for a trip from Nelson to Durham and back.
Defendant objected to this argument. The court overruled the objection, allowing counsel to argue inferences that could be drawn from the evidence. Outside the presence of the jury, the defense argued the prosecution's interpretation of the law was so narrow as to make it vague and unconstitutional. The court again overruled the defense objection.
The defense argued defendant was acting within the law as both defendant and Garrabrant had medical marijuana recommendations, as did Wood. The transportation was reasonable because it was necessary in order to weigh the marijuana.
In rebuttal, the prosecutor argued the law was based on the patient's current medical needs and here the only patient was defendant. He was not entitled to drive around with a large amount of marijuana in public.
The jury acquitted defendant of the corporal injury charge, convicted him of felony transportation, and acquitted him of felony evading but convicted him of misdemeanor evading.
Defendant moved to modify the verdict to the lesser offense of possession of more than 28.5 grams of marijuana (Health & Saf. Code, § 11357, subd. (c), a misdemeanor, pursuant to Penal Code section 1118, subdivision (6). Defendant argued the jury instruction on the Compassionate Use Act (Health & Saf. Code, § 11362.5) was vague and therefore unconstitutional.
The trial court granted the motion. It found defendant and two others had doctor's recommendations for medical marijuana and defendant grew marijuana for all three. He was taking it to Wood's to be weighed when he was stopped with about 24 ounces in his possession. In support of its decision, the trial court quoted from People v. Trippet (1997) 56 Cal.App.4th 1532, 1550: "practical realities dictate there must be some leeway in applying [Health and Safety Code] 11360." The court also quoted Chief Justice Earl Warren: "It is the spirit of the law and not the form of the law that keeps justice alive."
The court reduced count 2 to a misdemeanor, a violation of Health and Safety Code section 11357, subdivision (c), possession of more than 28.5 grams of marijuana.4
The Attorney General contends the trial court erred in reducing the felony transportation charge to misdemeanor possession. He asserts the verdict was not contrary to the law or the evidence, nor was the jury misinstructed. Defendant's position is that he was entitled to transport medical marijuana for himself and any others with a medical recommendation. The Attorney General contends that is not the law. We agree and reverse the order.
In moving for a reduction of the transportation charge, defendant argued the jury instruction was vague and unconstitutional, but the only grounds cited in support of the motion was Penal Code section 1181, subdivision 6. In granting the motion, the trial court referred to the jury instruction, but stated, "the Court is going to grant the motion under 1181(6) as being contrary to law and evidence."5
Penal Code section 1181, subdivision 6 provides:
A trial court's ruling on a motion under Penal Code section 1181, subdivision 6 is reviewed for an abuse of discretion. (People v. Davis (1995) 10 Cal.4th 463, 524; People v. Robarge (1953) 41 Cal.2d 628, 633.) While a trial court has broad discretion, its discretion is limited by the legal principles applicable to the case. (Adams v. Aerojet-General Corp. (2001) 86 Cal.App.4th 1324, 1330.) (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297.) Thus, if the trial court's ruling was based upon a misinterpretation of applicable law, an abuse of discretion has been shown. (Katiuzhinsky v. Perry (2007) 152 Cal.App.4th 1288, 1294.)
In ruling on the motion, the trial court emphasized that the jury showed leniency, acquitting defendant of one offense and convicting him of a lesser on another count. It found there was no dispute that defendant and two others had doctor's recommendations for medical marijuana and were transporting the marijuana only to weigh it. In finding the verdict contrary to the evidence and the law, the trial court apparently believed that a transportation charge cannot stand where the amount transported does not exceed the amount qualified, though unrelated, patients are allowed to possess. In other words, defendant could transport unlimited amounts of medical marijuana for himself and other qualified patients, so long as, cumulatively, each load was within the total individual limits. Because this is a misapplication of the law, the trial court abused its discretion in...
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