People v. Hughes

202 Cal.App.4th 1473

136 Cal.Rptr.3d 538

12 Cal. Daily Op. Serv. 1155

2012 Daily Journal D.A.R. 1153

The PEOPLE, Plaintiff and Respondent,

v.Steven Ebbert HUGHES, Defendant and Appellant.

No. E051741.

Court of Appeal, Fourth District, Division 2, California.

Jan. 27, 2012.

Review Denied Apr. 18, 2012.^*

Certified for Partial Publication.^*

Laurel M. Nelson, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton, and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

McKINSTER, J.

This is an appeal by Steven Ebbert Hughes, appellant and defendant (defendant), from the judgment entered after a jury found him guilty of cultivating marijuana in violation of Health and Safety Code section 11358 (count 1); possession of marijuana for sale in violation of Health and Safety Code section 11359 (count 2); and transportation of less than 28.5 grams of marijuana in violation of Health and Safety Code section 11360, subdivision (b), a lesser included offense to the charged violation of subdivision (a) of Health and Safety Code section 11360 (count 3). The trial court granted probation to defendant a condition of which prohibited defendant from using medical marijuana.

Defendant raises three claims of error in this appeal, the first two of which involve jury instructions, and the third of which challenges the validity of the probation term prohibiting his use of medical marijuana. We conclude defendant's claims are meritless and therefore we will affirm.

FACTS

The charges in this case stem from a traffic stop on May 15, 2008, in which Riverside County Sheriff's Deputy Timothy Mohr stopped defendant because the registration had expired on the truck defendant was driving. Deputy Daniel Cline also participated in the traffic stop, although it is not entirely clear from the record when he became involved. At the very least, once it was determined that defendant's vehicle registration had been expired for more than six months, Deputy Cline was involved in inventorying the vehicle'scontents so that it could be impounded.¹

In the course of that inventory, Deputy Cline found two large plastic bins behind the passenger seat. The bins contained 38 small marijuana plants that ranged in height from six to eight inches. At some point, apparently before Deputy Cline had actually looked inside the truck, defendant told the deputies that he had his “work” in the vehicle and that he needed to deliver it to the Los Angeles or Valencia area. Defendant apparently clarified that he had medical marijuana he was delivering to a collective in the Los Angeles area and that he had the paperwork in the truck that allowed him to have the marijuana. According to Deputy Mohr's trial testimony, defendant got upset when Deputy Cline put the marijuana plants on the tailgate of defendant's truck. Defendant said the heat would ruin the plants and that would cost defendant $400 of income.

Deputy Cline found a green folder or binder in the map pocket behind the driver's seat. The folder contained defendant's medical marijuana physician's statement, along with various other papers that all included handwritten notations. At trial, Investigator Ken Thurm, a Riverside County Deputy Sheriff assigned to the Special Investigations Bureau and the case investigator, testified that the papers and handwritten notations looked like “a sales call sheet. [¶] [']I called this person back. This person is not interested. Yes, this person would like some clones.[']”

Investigator Thurm also testified that he spoke with defendant over the telephone and defendant told him he had intended to trade the marijuana he had in his truck for finished usable marijuana that he uses to medicate himself. Defendant said the plants are clones, which are grown from female plants. The investigator confirmed that defendant is a patient of Dr. Weiss, who wrote the medical marijuana authorization that was found among the papers in defendant's truck. Investigator Thurm also expressed the opinion, based on all the evidence gathered in the case and the number of plants, that the marijuana found in defendant's truck was possessed for sale. Although defendant said he traded the clone marijuana plants at collectives,² Investigator Thurm expressed the opinion that defendant derived income from the plants. In Thurm's view, if defendant has plants he could grow them himself: “Instead of planting these and yielding his own medication, he is constantly selling them, passing them off, getting an income.”

Defendant did not testify at trial. Instead he presented the testimony of Dr. Dean Weiss, who confirmed that he had examined defendant and approved his use of medical marijuana for the treatment of pain. A second witness, Christopher Conrad, testified as an expert on medical marijuana use and cultivation. Conrad expressed the opinion that possession of 38 marijuana plants is consistent with personal use by a person with a physician's authorization for medical use of marijuana.

DISCUSSION

As previously noted defendant's first two claims of error involve the trial court's failure to give certain jury instructions. We first address those claims.

1.^**

2.PROBATION CONDITION PROHIBITING MARIJUANA USE

The trial court granted formal probation to defendant for a period of three years, on condition, among others, that he serve 120 days in county jail, and that he not possess or use medical marijuana “even if prescribed by a physician.” Defendant objected to imposition of that probation condition on the ground that his medical use of marijuana is lawful under Health and Safety Code section 11362.5 et seq., the Compassionate Use Act of 1996(CUA), which permits marijuana use when prescribed by a physician.

The pertinent facts are that the probation officer recommended in his sentencing report that the trial court prohibit defendant from “possessing and using marijuana, medicinally or otherwise” as a condition of defendant's probation. At the sentencing hearing the trial court asked defendant his “position” on the probation condition that he abstain from the use of medical marijuana. Defense counsel responded that the condition would be appropriate for someone using their “license” to sell dope on the street. Defendant's case, his attorney argued, is “completely and entirely different.” Defense counsel reminded the trial court that defendant's doctor testified at trial, and that defendant, who “certainly is a user of medical marijuana,” is “trying his best to stay within the bounds of the law.”

The trial court expressed concern about the adequacy of the evaluation defendant's doctor conducted, as reflected in the doctor's trial testimony. In the trial court's view, the physician conducted “the most cursory medical evaluation that one could possibly have which is pretty much asking a few questions to the defendant and not doing any type of real physical examination, blood work, anything of that nature—not that [defendant] may have been dishonest with the doctor, but it seems to me that even the most routine physical checkup would require that something else would have occurred.” The trial court added, “And that gives the Court at least the initial belief that what's happening here is that [defendant] was simply trading in, if you will, his marijuana for marijuana that he could use, perhaps, at an alarming rate, addictive rate, and a rate that wasn't going to assist him or help him; maybe it would and maybe it wouldn't, but it is certainly—may not be exactly on point with Brooks.” ⁵ “But it seems to the Court that what was happening—and there was no safeguards no protections, nothing that would prevent [defendant] from going to a medical marijuana facility, taking all his plants, as much as he could, and using as much marijuana—and the evaluation of this man by that doctor was akin to saying, ‘What's wrong with you?’ ‘I've got these injuries. I've had these past injuries.’ No examination of medical records, no blood tests, no work-up, nothing, and then prescribing him unlimited use of marijuana.”

When defense counsel suggested that the trial court could fashion a condition of probation that defendant be examined by a different doctor to obtain a prescription for medical marijuana, the trial court responded, “Well, that's what I intend to do. I intend to follow the recommendation of the Probation Department. And for [defendant's] use of marijuana ... that order and that term and condition of probation will be done without prejudice. He can petition this Court for modification of his probation provided that he has a licensed doctor in California and that he has the doctor provide a report to the Court as to what examination is [ sic ] he done, all these things that he's examined, and why he feels that marijuana is the only viable treatment plan that is available, and the Court will consider that.”

Four and half months after the sentencing hearing and a week after defendant was released from custody, he petitioned the trial court to modify the probation term. The trial court referred defendant's request to the probation department. At a subsequent hearing, the trial court followed the probation officer's recommendation and denied defendant's request. In doing so the trial court stated, “In six months—again, you're going to have to have it documented. You're going to have to have physicians look at you, examine you, possibly prescribe other alternative sources of medication for you, see if that can in some way accommodate your medical needs. If it can't, then your attorney's instructed to put this matter back on calendar....” After defense counsel pointed out that defendant had provided the court with a statement and recommendation from a doctor who had recently examined defendant, the trial court explained that it was...