People v. Trippet, No. A073484

• Court: California Court of Appeals
• Writing for the Court: HAERLE; KLINE, P.J., and LAMBDEN
• Citation: 66 Cal.Rptr.2d 559,56 Cal.App.4th 1532
• Parties: , 57 Cal.App.4th 754A, 97 Cal. Daily Op. Serv. 6513, 97 Daily Journal D.A.R. 10,639 The PEOPLE, Plaintiff and Respondent, v. Sudi Pebbles TRIPPET, Defendant and Appellant.
• Docket Number: No. A073484
• Decision Date: 15 August 1997

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66 Cal.Rptr.2d 559 56 Cal.App.4th 1532, 57 Cal.App.4th 754A, 97 Cal. Daily Op. Serv. 6513, 97 Daily Journal D.A.R. 10,639 The PEOPLE, Plaintiff and Respondent,
v.
Sudi Pebbles TRIPPET, Defendant and Appellant. No. A073484. Court of Appeal, First District, Division 2, California. Aug. 15, 1997.
As Modified on Denial of Rehearing Sept. 9, 1997.
Review Denied Nov. 25, 1997.

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[56 Cal.App.4th 1535] Sudi Pebbles Trippet, in pro. per., for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Ronald E. Niver, Clifford K. Thompson, Deputy Attorneys General, for Respondent.

[56 Cal.App.4th 1536] HAERLE, Associate Justice.

I. INTRODUCTION

Sudi Pebbles Trippet (appellant) was charged with transporting marijuana in violation of Health & Safety Code section 11360, subdivision (a), ¹ and possession of more than 28.5 grams of marijuana in violation of section 11357, subdivision (c). A jury found her guilty on both counts on December 1, 1995. On appeal, appellant argues that her convictions should be reversed because (a) the trial court denied her the right to present the defense of medical necessity to the jury, (b) the convictions violate her right to freely exercise her religion, and (c) Proposition 215, enacted after her convictions, provides her with a defense to the prosecution.

We reject arguments (a) and (b) above, but remand the case to the trial court for a limited retrial addressed to the issue of whether and to what extent Proposition 215 provides appellant with a partial defense to

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either or both of the charges upon which she was convicted.

II. FACTUAL AND PROCEDURAL BACKGROUND

On October 17, 1994, Officer Patrick Sweeney of the Kensington Police Department stopped appellant in her car for lack of a license plate lamp light. Upon approaching the vehicle and requesting identification, Officer Sweeney noted a strong odor of marijuana coming from the vehicle. Officer Sweeney searched the car. He found two bags containing a green leafy substance which he suspected was marijuana. He also found hand-rolled cigarettes, which appeared to contain marijuana. Samples of the contents of the two bags and the cigarettes tested positive for marijuana. Officer Sweeney estimated the total weight of the marijuana recovered from appellant's vehicle at approximately two pounds. At trial, appellant testified that she knew the bags were in her vehicle and that they contained marijuana.

[56 Cal.App.4th 1537] Prior to trial, appellant moved for dismissal of the charges on several grounds including "religious necessity" ² under the Religious Freedom Restoration Act of 1993 (RFRA). The court denied appellant's motion, finding that the statutes prohibiting the possession and transportation of marijuana were constitutional as applied to appellant.

The People moved in limine to exclude appellant's medical necessity defense. During an Evidence Code section 402 hearing, appellant presented a psychiatrist and "drug researcher," Dr. Tod Mikuriya, who testified regarding the medical use of marijuana for conditions such as migraine headaches (of which appellant allegedly suffered). The court found that appellant had not established the required elements of a necessity defense. Thus, the trial court excluded all evidence related to the defense of medical necessity.

On December 1, 1995, a jury found appellant guilty of both possession and transportation of marijuana as charged. The court admitted her to probation conditioned on her confinement in county jail for 180 days, less 51 days of credit. Appellant timely appealed her convictions.

Briefing was complete in this case on November 4, 1996. The very next day, Proposition 215 (the pertinent provisions of which will be noted in part III, C, post ) appeared on the general election ballot and was passed, thereupon becoming section 11362.5 of the Code. Appellant made no mention of Proposition 215 in her briefing to this court; the Attorney General briefly noted it, but did not argue its relevance one way or the other.

At oral argument of this case in April 1997, and in response to questions from the court, appellant's counsel first contended that Proposition 215 did not change the law applicable to her fact situation, but later retreated from this position and conceded it might. After that argument, we delayed submission of the case and requested further briefing on several issues related to Proposition 215 (to be noted and discussed later). Thereafter, on June 26, 1997, appellant filed a petition for a writ of habeas corpus asking to be permitted, on the grounds of ineffective assistance of counsel, to take an entirely new appeal from the trial court's judgment. The disposition we make of the Proposition 215 issue in this case effectively moots that petition and we will, accordingly, deny it (In re Trippet (Aug. 18, 1997) A078942 [nonpub. opn.] ).

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III. DISCUSSION

A. The Common Law Medical Necessity Defense was Properly Excluded

The trial court excluded appellant's common law medical necessity ³ evidence because it concluded she had not established the elements required for that defense. Appellant contends she presented sufficient evidence to invoke the defense and further contends she should have been permitted to present her

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defense to the jury because her psychiatrist's testimony at the Evidence Code section 402 hearing was uncontradicted. We reject both contentions.

1. Appellant failed to present evidence sufficient to establish the required elements of a necessity defense.

A "necessity" defense is recognized in California case law; it has not been codified. The defense may be available where a defendant is charged with committing any criminal act except the taking of an innocent human life. (People v. Pena (1983) 197 Cal.Rptr. 264, 149 Cal.App.3d Supp. 14, 22 (Pena ); People v. Slack (1989) 210 Cal.App.3d 937, 940-942, 258 Cal.Rptr. 702 (Slack ).) The only California case that mentions a defense of medical necessity seems to assume the validity of the defense; there is no discussion. (People v. Forster (1994) 29 Cal.App.4th 1746, 1759, 35 Cal.Rptr.2d 705 ["[T]he jury did not accept Forster's defense of medical necessity, namely, that he drank only to deaden the pain of his ear injury."].) Assuming a medical necessity defense is valid in California (over and above, that is, any provided by Proposition 215), we agree with the trial court's implicit finding that it is composed of the same elements as the general necessity defense.

An individual claiming the defense of necessity must establish six required elements: "(1) The act charged as criminal must have been done to prevent a significant evil; [p] (2) There must have been no adequate alternative to the commission of the act; [p] (3) The harm caused by the act must not be disproportionate to the harm avoided; [p] (4) The accused must entertain a good-faith belief that his act was necessary to prevent the greater harm; [p] (5) Such belief must be objectively reasonable under all the circumstances; and [p] (6) The accused must not have substantially contributed to the creation of the emergency." (Pena, supra, 197 Cal.Rptr. 264, 149 Cal.App.3d Supp. at pp. 25-26; see also CALJIC No. 4.43 (6th ed.1996).)

In the present case, the trial court found appellant's offer of proof on the common law medical necessity defense insufficient to permit the [56 Cal.App.4th 1539] evidence pertinent to it to go to the jury. The standard for evaluating the sufficiency of the evidentiary foundation is whether a reasonable jury, accepting all the evidence as true, could find the defendant's actions justified by necessity. (Slack, supra, 210 Cal.App.3d at p. 941, 258 Cal.Rptr. 702.) The court in Slack noted that satisfying the required foundational burden through an offer of proof rather than on the witness stand makes no difference to the standard of review on appeal, which is "whether there is evidence deserving of consideration from which reasonable jurors could conclude the Pena elements have been satisfied." (Id. at p. 942, 258 Cal.Rptr. 702.)

To sustain such a defense, appellant was required to establish the following: (1) she possessed and transported marijuana to prevent a significant evil; (2) there was no adequate alternative; (3) the harm resulting from possessing and transporting marijuana was not greater than harm avoided; (4) she believed her actions were necessary to prevent greater harm; (5) her belief was objectively reasonable; and (6) she did not substantially contribute to the creation of the emergency. (See Slack, supra, 210 Cal.App.3d at p. 940, 258 Cal.Rptr. 702.) We need not analyze all six elements because we find as a matter of law that appellant failed to establish that she had no adequate alternative but to possess and transport the marijuana.

In discussing the defenses of duress and necessity in the context of a prison escape, the United States Supreme Court stated: "Under any definition of these defenses one principle remains constant: if there was a reasonable, legal alternative to violating the law, 'a chance both to refuse to do the criminal act and also to avoid the threatened harm,' the defenses will fail. [Citation.]" (United States v. Bailey (1980) 444 U.S. 394, 410, 100 S.Ct. 624, 635, 62 L.Ed.2d 575 (Bailey ).) The evidence below established that Dr. Mikuriya had prescribed Marinol, a prescription drug containing a synthetic marijuana compound, for appellant's (and other patients') migraine headaches. On cross examination, Dr. Mikuriya acknowledged that marijuana was a relatively unknown treatment, and that thousands of people in California

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suffering from migraines use "other forms of treatments, other ... prescription drugs, over the counter drugs, to treat their migraine headaches." Marinol is legally available, having passed...