People v. Wright

• Decision Date: 27 November 2006
• Docket Number: No. S128442.,S128442.
• Citation: 51 Cal.Rptr.3d 80,146 P.3d 531,40 Cal.4th 81
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Shaun Eric WRIGHT, Defendant and Appellant.

51 Cal.Rptr.3d 80

40 Cal.4th 81

146 P.3d 531

The PEOPLE, Plaintiff and Respondent, v. Shaun Eric WRIGHT, Defendant and Appellant.

No. S128442.

Supreme Court of California.

November 27, 2006.

Maureen J. Shanahan, under appointment by the Supreme Court, for Defendant and Appellant.

Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Donald E. de Nicola, Deputy State Solicitor General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela A. Ratner Sobeck, Marc J. Nolan, Ana R. Duarte and Erika Hiramatsu, Deputy Attorneys General, for Plaintiff and Respondent.

MORENO, J.

The Compassionate Use Act of 1996 (the CUA) ensures that Californians who obtain and use marijuana for specified medical purposes upon the recommendation of a physician are not subject to certain criminal sanctions. (Health & Saf. Code, § 11362.5.)¹ Specifically, the CUA provides an affirmative defense to the crimes of possessing marijuana (§ 11357) and cultivating marijuana (§ 11358) for physician-approved personal medical purposes. (§ 11362.5, subd. (d).) However, the CUA does not provide a defense to the crime of transporting marijuana. A conflict arose in the Court of Appeal regarding whether and under what circumstances an implied defense to this offense existed under the statute. (Compare People v. Trippet (1997) 56 Cal.App.4th 1532, 66 Cal. Rptr.2d 559 with People v. Young (2001) 92 Cal.App.4th 229, 111 Cal.Rptr.2d 726.) In this case, defendant Shaun Eric Wright was convicted of transporting marijuana after the trial court declined to instruct the jury that the CUA provided a defense to that charge. The Court of Appeal, concluding the refusal was prejudicial error, reversed. We granted review to resolve the issue.

While this case was pending, however, the Legislature enacted the Medical Marijuana Program (MMP), one purpose of which was to address issues not included in the CUA so as to promote the fair and orderly implementation of the CUA. (§ 11362.7 et seq.) Among its provisions, the MMP specifically provides an affirmative defense to the crime of transporting marijuana by individuals entitled to the protections of the CUA. (§ 11362.765.) The MMP has been held to apply retroactively to cases pending at the time of its enactment. (People v. Urziceanu (2005) 132 Cal.App.4th 747, 33 Cal.Rptr.3d 859; People v. Frazier (2005) 128 Cal.App.4th 807, 27 Cal.Rptr.3d 336.)

Defendant contends that the MMP applies in this case and provides an alternative ground to affirm the judgment of the Court of Appeal. We agree that the MMP applies retroactively to cases pending at the time of its enactment and, therefore, to the present case. We conclude, moreover, that, because defendant presented sufficient evidence to entitle him to an instruction on the CUA as an affirmative defense to the transportation charge, it was error for the trial court to have refused this instruction. Nonetheless, contrary to the Court of Appeal, for the reasons set forth below, we conclude further that the instructional error was harmless.

Facts

On September 20, 2001, Huntington Beach police officers received a tip that a vehicle at a car wash smelled as if it contained marijuana and that, specifically, a backpack in the vehicle "reeked of marijuana." Officer Mark Armando and two other officers, including Sergeant Henry Cuadras, responded to the call. Officer Armando stopped defendant near the car wash as defendant was driving away in his black Toyota pickup truck. The driver's side window was rolled down. As he approached the truck, Armando noticed a strong odor of marijuana coming from within the truck and observed a backpack on the seat next to defendant. Armando told defendant about the tip and asked him if there was marijuana in his truck. Defendant said no. Armando had defendant step outside the truck. Defendant got out of the truck holding the backpack. Armando again asked defendant whether there was any marijuana in the truck and defendant again said no.

Sergeant Cuadras conducted a patdown search of defendant that yielded a small baggie of marijuana in defendant's pants pocket. Armando searched defendant's backpack and found six small baggies of marijuana, two large bags of marijuana and an electronic scale. The small baggies ranged in weight from 4.8 grams to 9.7 grams while the large bags of marijuana each weighted 30.6 grams, or slightly more than an ounce. A search of defendant's truck yielded a large bag of marijuana concealed in a storage compartment behind the passenger seat. The bag weighed 469.4 grams, or slightly more than a pound. No devices for smoking marijuana were found in the truck or on defendant's person.

Defendant was charged by information with possessing marijuana for sale (§ 11359), transporting marijuana (§ 11360, subd. (a)), and driving on a suspended or revoked license (Veh.Code, § 14601.1, subd.(a).)²

Defendant's trial commenced on May 1, 2002. Both Officer Armando and Sergeant Cuadras testified that in their opinion defendant possessed the marijuana to sell, not for his personal use. They based their opinions on the quantity of marijuana in defendant's possession, the manner in which it was packaged and concealed in his vehicle, and the presence of the scale in his backpack.

Following Officer Armando's testimony, the trial court conducted a hearing pursuant to Evidence Code section 402 on defendant's request for a jury instruction based on the CUA.³ Dr. William Eidelman testified on defendant's behalf that he had recommended that defendant use marijuana to alleviate his medical problems. Eidelman testified that defendant first consulted him on June 7, 2001. At the consultation, defendant brought medical records that pertained to a shoulder injury he had suffered as the result of a bicycle accident in 1994. He complained of chronic pain in his legs and shoulder, abdominal problems from a stomach parasite, and emotional distress. After performing a physical examination of defendant, Dr. Eidelman wrote a letter approving a self-regulating dose of marijuana to relieve defendant's chronic pain and to treat the decreased appetite he experienced as a result of his stomach problems. Defendant told Dr. Eidelman that he preferred eating marijuana to smoking it.

Dr. Eidelman saw defendant again on November 30, 2001, following defendant's arrest. He and Dr. Eidelman discussed the fact that defendant preferred to eat marijuana, a practice that required a larger amount of marijuana than smoking it to achieve the same effect. Defendant told Dr. Eidelman that, when he ate marijuana, a pound of it usually lasted him two to three months. At defendant's request, Dr. Eidelman wrote a letter on his behalf approving defendant's use of a pound of marijuana every two to three months. At the hearing, Eidelman testified that a pound every two or three months was consistent with the manner in which defendant stated that he ingested marijuana.

Defendant also testified at the evidentiary hearing. Defendant described injuries to his leg, collarbone and shoulder and a stomach ailment that caused him severe chronic pain. His shoulder injury prevented him from sleeping through the night and had forced him to give up his employment as a carpenter. Defendant also testified that his stomach ailment caused him to suffer nausea and chronic diarrhea and had also affected his appetite.

At the conclusion of the evidentiary hearing, the trial court ruled that the CUA did not apply "in a transportation case where we have one pound, three ounces of marijuana." The trial court also rejected defendant's request for a CUA instruction with regard to the possession for sale count. However, the court allowed the defense to present evidence of medical use as proof that defendant possessed the marijuana for personal medical use and not to sell.

At the resumed trial, Dr. Eidelman testified that defendant's use of a pound of marijuana over a two- or three-month period was reasonable. Dr. Eidelman based his approval of defendant's use of marijuana on defendant's medical records, a physical examination of defendant and conversations with defendant regarding his preference to eat marijuana.

Defendant testified that the marijuana he possessed was for his own personal medical use and not to sell. He testified that he had been smoking marijuana since 1991 to alleviate the chronic pain he experienced as a result of his various injuries. He explained that, while he smoked about an eighth of an ounce of marijuana a day, he preferred to eat it, and that the pound of marijuana found in his vehicle was for cooking. He also testified that the pound of marijuana would yield eight ounces for cooking.

Defendant testified further that, on the morning of his arrest, he had purchased the marijuana found by the police packaged in the manner in which they found it. He explained that he had not purchased the marijuana in a single large bag because it had different potencies and was used for different purposes, like cooking as opposed to smoking. Defendant testified that after purchasing the marijuana, he went to get the oil in his truck changed and his truck washed and was on his way home when the police stopped and arrested him. Defendant did not explain why he had a scale in his possession when he was arrested.

Before closing arguments, the defense renewed its request to give a compassionate use defense jury instruction. The trial court again declined to give the instruction.

After the jury was instructed, but before closing arguments, the judge received several questions from individual members of the jury. Among those questions was "Is marijuana for medicinal purposes acceptable with the law?" and "Can a doctor legally prescribe marijuana?" The court declined to answer these questions, but instead told the jury to listen to closing arguments of both counsel and "if you still have questions after argument, you can...