People v. Urziceanu, No. C045276.

• Court: California Court of Appeals
• Writing for the Court: Robie
• Citation: 33 Cal.Rptr.3d 859,132 Cal.App.4th 747
• Parties: The PEOPLE, Plaintiff and Respondent, v. Michael C. URZICEANU, Defendant and Appellant.
• Docket Number: No. C045276.
• Decision Date: 12 September 2005

33 Cal.Rptr.3d 859 132 Cal.App.4th 747 The PEOPLE, Plaintiff and Respondent,
v.
Michael C. URZICEANU, Defendant and Appellant. No. C045276. Court of Appeal, Third District, Sacramento. September 12, 2005.

[33 Cal.Rptr.3d 862]

Scott Concklin, Redding, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Senior Assistant Attorney General, Carlos A. Martinez, Supervising Deputy Attorney General, Catherine G. Tennant, Deputy Attorney General, for Plaintiff and Respondent.

ROBIE, J.

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Defendant Michael C. Urziceanu claims he created a legal cooperative, FloraCare, to grow and supply medical marijuana for himself as a patient qualified to use it under the Compassionate Use Act¹ and for other patients and primary caregivers who also qualify under the Compassionate Use Act. The People assert defendant and his codefendant, Susan B. Rodger,² were illegally cultivating and selling marijuana.

After trial, the jury acquitted defendant of cultivating marijuana, sale of marijuana, and being a felon in possession of ammunition. The jury, however, found him guilty of conspiracy to sell marijuana and being a felon in possession of a firearm and ammunition.

Defendant argues the recently enacted Medical Marijuana Program Act³ supplies him with a defense. As to his conviction for conspiracy, defendant argues the court should have instructed the jury on the defenses of mistake of law and the vagueness of the Compassionate Use Act. He further contends the trial court erred in its ruling on his motion to suppress evidence obtained in violation of the knock-notice law.

As we shall demonstrate, the Compassionate Use Act, alone, does not authorize collective growing and distribution of marijuana by a group of qualified patients and caregivers. However, defendant's mistake of law as to

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whether that law provided him with a defense constitutes a defense to the

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charge of conspiracy to sell marijuana. The Medical Marijuana Program Act also provides defendant with a potential defense. Further, we conclude the trial court's order on the search and seizure motion must be remanded for appropriate findings by the trial court. Thus, we shall reverse defendant's conspiracy conviction and remand for a new trial on that count.⁴

FACTUAL AND PROCEDURAL BACKGROUND A The Prosecution's Case

In August 2000, the police learned that marijuana was being distributed from defendant's home in Citrus Heights. From newspaper articles and the Internet, Detective Steven Weinstock discovered defendant claimed to be engaged in medical marijuana activity. Police set up surveillance on the home and questioned people who came from that home. All but one of the subjects questioned had a medical marijuana recommendation — but that one person had a cooperative card from the Oakland Cannabis Buyers' Cooperative.

In January 2001, Detective Weinstock sent Detective Sue McCurry into defendant's residence without a medical certificate in an attempt to buy marijuana. She was unsuccessful.

After defendant was shot in 2001 during an apparent drug rip off, Detective Weinstock visited him in the hospital. During their conversation, defendant told Detective Weinstock that he planned to establish a medical marijuana cooperative like the ones operating in the San Francisco Bay Area.

On August 9, 2001, Sacramento County Sheriff's Sergeant Karlene Doupe drove to defendant's Citrus Heights home. She had a laminated medical certificate for marijuana and a Department of Motor Vehicles driver's license in her undercover name.

Sergeant Doupe knocked on the door and Rodger opened it. Sergeant Doupe asked to speak with defendant and explained that she wanted to purchase some marijuana for her headaches. While she was in the house, Sergeant Doupe saw defendant in the kitchen and noticed about 15 to 20 marijuana plants in the backyard.

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Rodger explained they normally only saw new members on Tuesdays or Wednesdays, but because it was slow, she could fill out the application paperwork. When Sergeant Doupe said she did not have her medical certificate, Rodger told her she could fill out the paperwork and bring her certificate in the next day. Rodger, however, would not provide Doupe with marijuana without a certificate. Sergeant Doupe went out to her car and brought in her certificate.

Sergeant Doupe filled out a FloraCare member agreement/consent form, a medical cannabis farm consent form, an affidavit of truth, and a memorandum of understanding. The member agreement stated that she had been diagnosed with a serious illness for which cannabis provides relief and had received a recommendation or approval from a physician to use cannabis. The document stated, "I understand that my contributions to F.C.H.H. through products I may acquire from the organization, are used to insure continued operation of F.C.H.H. and that this transaction, in no way, constitutes commercial promotion." The agreement further stated

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that the membership fee for FloraCare was $25 per year and that she agreed she would pay for the costs of goods provided and services rendered.

The medical cannabis farm consent form signed by Sergeant Doupe designated FloraCare as her "primary caregiver of health care services for the provision of medical cannabis as per the compassionate Use Act of 1996." Further, by signing the form, Sergeant Doupe confirmed under penalty of perjury that she had a qualifying medical condition and a doctor's prescription and agreed to reimburse FloraCare for the costs of gardening to cultivate her medical cannabis. The consent form further stated all of the marijuana cultivated and transported was the collective property of the person signing the document.

The other two application documents echoed these statements in various ways. In the affidavit of truth, Sergeant Doupe declared under penalty of perjury that a medical doctor recommended or approved her use of cannabis. The form also stated that she "appoint[s] F.C.H.H. and their representatives, as my true and lawful agents . . . for the limited purpose of assisting me in cultivation and thereby possession, distribution, and transportation of cannabis for my medical use. As such, I also authorize F.C.H.H. to allow other bona fide patients and caregivers who have entered into a similar agreement to jointly possess the cannabis that is cultivated under this agreement."

After Sergeant Doupe filled out the paperwork, she returned it to Rodger. She also presented Rodger with her driver's license and the medical certificate. Rodger made a copy of the certificate and explained that the documents would be entered into a computer and then removed from the site so that law enforcement would be unable to obtain them.

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Rodger made five unsuccessful attempts to verify the medical certificate by calling the doctor listed by Doupe on the application. Rodger told Sergeant Doupe if the original had a gold seal, she would not have to verify its authenticity.

Rodger left the room and returned with a brown bottle she described as tincture of marijuana (alcohol in which marijuana leaves had been soaked). She offered to place a few drops of the tincture under Sergeant Doupe's tongue to help her headache, but the sergeant demurred by feigning an allergy to alcohol. Rodger put the drops of the tincture on some bread and gave the bread and a cookie that contained marijuana to Sergeant Doupe. Rodger claimed the cookies and bread were normally $2 each, but because they needed to be eaten, she would give them to Sergeant Doupe for free. Rodger also told Doupe that defendant owned the home, but that he was donating it to the business. They were going to remodel the home so there would be a room for members to relax in and a waiting/reception room.

Rodger then went into the kitchen and brought back a coffee can filled with small bags of marijuana. Rodger told Sergeant Doupe to take what she needed and that the bags were $50 each. Rodger also told Sergeant Doupe that the marijuana in the can had been donated by members of FloraCare, but there were 100 plants growing in the backyard.

Doupe took three bags and gave Rodger $160. Each bag contained 3.5 grams of marijuana and had a sticker with the word "FloraCare" on it. The sticker also bore the words: "The cannabis contained herein is intended for approved medical uses only pursuant to Health and Safety Code sections 11362.5 and 11357-11358 in accordance with the laws of the state of California." Rodger gave Sergeant Doupe three

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more slices of bread and $5 back as change.

Despite the forms she filled out during this transaction, Sergeant Doupe testified she never designated Rodger or defendant as her primary caregiver. Further, she testified neither Rodger nor defendant provided for her housing, health, or shelter.

On September 18, 2001, Detective Dan Donelli served a search warrant on defendant's home. During that search, officers found a greenhouse structure in the backyard that contained at least 51 plastic drinking cups, each with a marijuana plant two to four feet tall. Around the pool and backyard, police found several different marijuana gardens that contained 159 plants which weighed a total of 410.65 pounds.

Inside the house, in the garage and in a separate drying room, officers found more marijuana, drying marijuana buds, plastic cups with potting soil

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in them, fertilizer, growing medium, and "grow lights." They also found glass marijuana pipes, a triple beam scale, a receipt book, marijuana leaves, various items of food made from marijuana, three guns, and assorted ammunition.⁵ Officers also discovered over $2,800 in cash and what they concluded were pay/owe sheets in the home. Defendant began to smoke marijuana during the...