People v. Young

• Decision Date: 13 September 2001
• Docket Number: No. C036539.,C036539.
• Citation: 111 Cal.Rptr.2d 726,92 Cal.App.4th 229
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. James Walter YOUNG, Defendant and Appellant.

111 Cal.Rptr.2d 726

92 Cal.App.4th 229

The PEOPLE, Plaintiff and Respondent, v. James Walter YOUNG, Defendant and Appellant.

No. C036539.

Court of Appeal, Third District.

September 13, 2001.

Certified For Partial Publication.^*

Review Denied December 12, 2001.^**

Fay Arfa, Los Angeles, under appointment by the Court of Appeal, for Defendant and Appellant James Walter Young.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, Stephen G. Herndon, Supervising Deputy Attorney General, Paul E. O'Connor, Deputy Attorney General, for Plaintiff and Respondent.

SIMS, Acting P.J.

A jury convicted defendant of transportation of 135.3 grams of marijuana in his car. (Health & Saf.Code,¹ § 11360, subd. (a).) Defendant contends the trial court erred by (a) failing to instruct the jury, sua sponte, on mistake of fact because defendant believed he was entitled to transport marijuana under the Compassionate Use Act of 1996 (§ 11362.5);² (b) failing to instruct the jury the offense of transportation of marijuana requires the specific intent to transport it; and (c) refusing to allow his attorney to make arguments under the Compassionate Use Act during closing argument. He further argues the cumulative effect of these errors deprived him of a fair trial.

In the published portion of the opinion, we conclude under the circumstances of this case the Compassionate Use Act does not provide defendant with a defense. In the unpublished portion of the opinion, we reject defendant's other contentions of prejudicial error. We shall therefore affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On November 6, 1999, California Highway Patrol Officer Rick LaGroue was on patrol in Tehama County on State Route 36 between Mineral and Paynes Creek. He noticed a green car with Oregon plates travelling in the opposite direction. The car abruptly went off the right shoulder of the road and then jerked back onto the road.

Officer LaGroue made a U-turn to investigate. By the time he caught up with the car, it had pulled over on the shoulder. Officer LaGroue went up to speak with the driver. Defendant was the sole occupant of the car. Defendant told the officer he lived in Paynes Creek. The contents of the car included an ice chest, two tool boxes and tools, four duffel bags filled with clothing and tools, some speakers, cassettes, a boom box, a television, and other miscellaneous items.

While the officer was conducting a routine records check on the defendant, the defendant took off his straw hat and dropped it on a small blue gift bag on the passenger side floorboard of his car. The officer asked defendant if he had any drugs in the car. Defendant told him he had marijuana in the blue gift bag he then handed it to the officer. The gift bag contained a baggie of marijuana marked "Awesome Shake Bud," a black tin container some cigarette rolling papers, a rolling device, matches, and 16 burnt marijuana ends (roaches). The black tin contained a smoking pipe, 21 hand rolled marijuana cigarettes, another roach, and a small sandwich baggie containing marijuana marked "Maggie."

The officer searched the car and found another clear gallon-sized baggie containing marijuana marked "Rhonda Flower" with a "121" crossed out with a "113" next to it. The officer also found a second gallon-sized baggie containing seven smaller bags of marijuana marked with the words "Star-76." All told, the officer recovered 135.3 grams (about 4.74 ounces) of marijuana.

Defendant handed Officer LaGroue a document entitled "California Compassionate Use Act of 1996, Health & Safety Code § 11362.5, Physician's Statement." That document stated: "James W. Young . . . is under my medical care and supervision for treatment of the serious medical condition): Traumatic Arthritis Major Dep [sic ] Recurrent. . . . I have discussed the medical risks and benefits of cannabis use with him/her as an appropriate treatment. I recommend and approve his/her use of cannabis with the following limitations/conditions: No more than ten plants." The document was signed by Dr. Tod H. Mikuriya.

The People filed an information charging defendant with transportation of marijuana and alleging he had served a prior prison term. (§ 11360, subd. (a); Pen. Code, § 667.5, subd. (b).)

At his jury trial, defendant called the custodian of records for Dr. Mikuriya's office who testified the certificate was a business record from his office.

Defendant also called Marjorie Goode who testified she gave names to different marijuana plants, including "Star 76," "Maggie," and "Rhonda."

The defendant's stepfather testified he helped defendant load up his belongings into his car the day he was arrested. The defendant, however, left some of his belongings at his home in Paynes Creek.

Defendant did not testify. Other than the mere presentation of the certificate, he produced no evidence as to his medical condition, his need for marijuana, how much he used at a time, or how often he used it. He produced no evidence quantifying how much marijuana ten plants could produce. He did not present any evidence as to what his belief was as to his ability to transport marijuana or that he was mistaken that the Compassionate Use Act provided him with a defense to the transportation charge.

The jury convicted defendant of transportation of marijuana. (§ 11360, subd. (a).) Defendant waived a jury trial on the prior prison term allegation and the trial court found it to be true.

The trial court sentenced defendant to four years in state prison. Defendant appeals.

DISCUSSION

I. Mistake of Fact Instruction

Defendant argues the trial court erred in failing to instruct the jury on mistake of fact. Defendant claims he was mistaken because he thought the marijuana he transported was medicine. We reject this argument because defendant was under an inexcusable mistake of law that the Compassionate Use Act provided him with a defense to transportation of marijuana.

"[A] trial court's duty to instruct, sua sponte, or on its own initiative, on particular defenses . . . aris[es] `only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.' [Citations.]" (People v. Barton (1995) 12 Cal.4th 186, 195, 47 Cal.Rptr.2d 569, 906 P.2d 531.)

Defendant's claim brings us to the often difficult distinction between the defense of mistake of fact and mistake of law. On the one hand, an "`"honest and reasonable belief in the existence of circumstances, which, if true, would make the act for which the person is indicted an innocent act, has always been held to be a good defense. . . ."' [Citation.] `The primordial concept of mens rea, the guilty mind, expresses the principle that it is not conduct alone but conduct accompanied by certain specific mental states which concerns, or should concern, the law. In a broad sense the concept may be said to relate to such important doctrines as justification, excuse, mistake, necessity and mental capacity, but in the final analysis it means simply that there must be a "joint operation of act and intent," as expressed in section 20 of the Penal Code.' [Citation.]" (People v. Lucero (1988) 203 Cal.App.3d 1011, 1016, 250 Cal.Rptr. 354.)

On the other hand, "`It is an emphatic postulate of both civil and penal law that ignorance of a law is no excuse for a violation thereof. Of course it is based on a fiction, because no man can know all the law, but it is a maxim which the law itself does not permit anyone to gainsay. It is expected that the jury and the court, where it is shown that in fact the defendant was ignorant of the law, and innocent of any intention to violate the same, will give the defendant the benefit of the fact, and impose only a light penalty. . . . The rule rests on public necessity; the welfare of society and the safety of the state depend upon its enforcement.'" (People v. Costa (1991) 1 Cal.App.4th 1201, 1211, 2 Cal.Rptr.2d 720.)

People v. Costa, supra, 1 Cal.App.4th 1201, 1210-1211, 2 Cal.Rptr.2d 720, explained the distinction between a mistake of law and a mistake of fact. In Costa, the defendant had been convicted of manufacturing amphetamine. (Id. at p. 1204, 2 Cal.Rptr.2d 720.) Defendant argued he was entitled to a jury instruction on the mistake of fact defense. (Id. at p. 1208, 2 Cal.Rptr.2d 720.) Defendant's claimed mistake was that he gave his co-defendant (Wolden) permission to use his garage for the purpose of manufacturing amphetamine because he believed Wolden was a police informant who was immune from prosecution under section 11367. (Id. at pp. 1210-1211, 2 Cal.Rptr.2d 720.) Further, defendant believed he was entitled to immunity because he was helping Wolden. (Id. at pp. 1210-1211, 2 Cal.Rptr.2d 720.) The court characterized the issue as "whether an honest and reasonable belief that the person one is aiding in the commission of an otherwise criminal act is immune from prosecution provides a defense for such aid." (Id. at p. 1211, 2 Cal.Rptr.2d 720.) The court concluded, "This defense consists of two mistakes, one of fact and one of law. [Defendant's] mistake of fact was believing that Wolden was acting as a police informant. [Defendant's] mistake of law was believing that the statutory grant of immunity provided for by section 11367 extended to those who assist the informant. Even if Wolden had been acting as an informant when he came to the [defendant's] home, his assurances to [defendant] that he was not going to do anything illegal did not make [defendant's] participation in the manufacturing of a controlled substance lawful." (Id at p. 1211, 2 Cal.Rptr.2d 720.) "[Defendant's] testimony reveals that he did intend to assist in the manufacturing of a controlled substance, but that he did not intend to break the law. Although we would...