People v. McNelis

THE PEOPLE, Plaintiff and Respondent,

v.MORGANA MCNELIS, Defendant and Appellant.

B230425

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO

Dated: March 22, 2012

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. LA063811)

APPEAL from a judgment of the Superior Court of Los Angeles County. Joseph A. Brandolino, Judge. Affirmed.

Margolin Law Office, Allison B. Margolin and J. Raza Lawrence for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Assistant Attorney General, Michael Johnsen and Taylor Nguyen, Deputy Attorneys General for Plaintiff and Respondent.

Defendant and appellant Morgana McNelis (defendant) appeals her conviction of maintaining an unlawful marijuana dispensary. Defendant challenges the validity of the search warrant that led to her arrest and conviction, arguing that it was issued without probable cause. Defendant contends that the supporting affidavit omitted material information that would have altered the magistrate's probable cause determination. We reject defendant's contentions, conclude that the warrant was issued upon probable cause, and affirm the judgment.

BACKGROUND

1. Procedural Background

Based upon evidence discovered as a result of a search conducted pursuant to a warrant, defendant was charged with maintaining a place for selling or using controlled substances, in violation of Health and Safety Code section 11366 (count 1).¹ Defendant was charged in count 2 with possession of marijuana for sale in violation of section 11359. Defendant moved to quash the search warrant and suppress the evidence collected. The trial court denied the motion. Later, defendant entered into a plea agreement whereby she pled guilty to count 1 and count 2 was dismissed. The trial court placed defendant on three years' of formal probation, conditioned upon serving two days in jail and other conditions. The court awarded defendant two days of presentence credits, and imposed mandatory fines and fees. Defendant obtained a certificate of probable cause and filed a timely notice of appeal.

2. Affidavit supporting the search warrant

In November 2009, a magistrate issued a warrant to search the premises of Green Mile Caregivers (GMC), as well as defendant's residence and person. Los Angeles County Police Officer Matthew Stuart executed the affidavit supporting the issuance of the warrant. In addition to information about his training, experience and expertise in the identification of controlled substances and their use and trafficking, Officer Stuartdescribed his familiarity with the medical marijuana laws and the extent of his training in the investigation of medical marijuana dispensaries.

Officer Stuart stated that on October 21, 2009, he received information from a citizen that GMC was selling marijuana illegally.² The citizen reported that individuals would enter GMC, purchase marijuana and then leave. The citizen further reported that GMC was near a high school and young males frequented the dispensary. Based on this information Officer Stuart formed the opinion that GMC was "just a money-making enterprise that sells marijuana."

Officer Stuart described the investigation, relating that various officers conducted surveillance of GMC on two separate days during which they observed defendant as she locked up at the end of the business day, drove home, and opened GMC for business the next morning. Officer Stuart concluded that defendant was operating GMC.

A confidential informant (CI) was engaged to make a "controlled narcotics buy" at GMC. The CI had no health issues, was not under the care of any medical professional for any ailment or medical condition, did not need a caregiver for any medical condition, was not a member of any "marijuana cooperative or collective," and had not designated GMC or any owner or employee of GMC as a primary caregiver. Also, the CI had never met anyone associated with GMC prior to the controlled buy and GMC had never assumed responsibility for the housing, safety, or health of the CI.

For the first controlled buy, the officers determined that the CI had no contraband in his possession and then the CI rang the doorbell and was admitted by a GMC employee and shown into a waiting room. After asking to buy $40 worth of marijuana, the CI showed the employee a medical marijuana prescription, which was photocopied and returned to the CI. The employee then led the CI into the room where the marijuana was kept, selected three strains of marijuana plus a free sample, and packaged thedifferent strains of marijuana separately. The CI paid $40 in cash, left the premises with the marijuana, and turned it over to the officers. The transaction took about 10 minutes.

One week later a second controlled buy that also lasted about 10 minutes was conducted. The CI was searched as before and went to GMC where he told an employee that he wanted to buy $40 worth of marijuana. The employee took the CI first into a waiting room and then into the room where marijuana was kept, selected two different strains of marijuana and a one-gram free sample, and packaged them separately. The CI paid $40 for the marijuana, left GMC with the marijuana, and turned it over to the officers.

According to Officer Stuart the CI never performed any duties at GMC and did not do so during the two controlled marijuana buys, nor was he asked to help run GMC, provide marijuana for GMC, or assist in cultivating marijuana for the benefit of GMC. "The CI simply went to [GMC], paid cash for marijuana, and left."

Officer Stuart concluded from the controlled buys that GMC "does not ask their members/clients/patients/customers to assist in the distribution or the cultivation of marijuana for the collective, nor do they ask them to do any other duties to assist in the running of the collective as might be expected if it was a true collective." Based on his investigation, training, and experience, it was Officer Stuart's opinion that GMC was not acting as a caregiver for its members but was engaged in selling marijuana for profit.

3. Defendant's motion

Prior to the preliminary hearing, defendant filed a motion to traverse the search warrant and to suppress evidence. Since the motion was not heard at the time of the preliminary hearing it was refiled after the information was filed. Exhibits were attached to the motion but no supporting declaration or affidavit was included.

The motion was made on the grounds that the magistrate who signed the warrant was misled by errors or omissions in the affidavit and issued the warrant without probable cause. Defendant argued that the following material and exculpatory facts were intentionally or recklessly omitted from the affidavit: GMC claimed to be a valid medical marijuana dispensary; it distributed marijuana only to qualified patients; allmembers were required to join the collective and sign a written collective agreement; GMC had filed articles of incorporation as a nonprofit mutual benefit corporation, and had never made a profit; and GMC had obtained all relevant permits.³ At the hearing on defendant's motion, the parties stipulated that during one of the controlled buys, the CI signed an agreement provided by GMC, designating GMC as his caregiver and joining the collective as a member.

The trial court found that the warrant had been issued upon probable cause, that the allegedly omitted facts were not material, and that defendant had failed to meet her burden to show that the officer had any knowledge of such facts. The trial court denied the motion.

DISCUSSION

I. Relevant legal principles

The maintenance of any place for the purpose of unlawfully selling, giving away, or using marijuana is prohibited (§ 11366), and the possession of marijuana for sale is a felony (§ 11359). The Compassionate Use Act of 1996 (CUA) gives individuals the right to obtain and use marijuana when appropriate for medical purposes and recommended by a physician. (§ 11362.5, added by voter initiative, Prop. 215, Gen. Elec. (Nov. 5, 1996).) The CUA created partial immunity from criminal liability for the possession and cultivation of marijuana by qualified patients and their primary caregivers. (§ 11362.5, subd. (b)(1)(A); People v. Mentch (2008) 45 Cal.4th 274, 277 (Mentch).) Section 11362.5 does not provide immunity from arrest based upon probable cause. (People v. Mower (2002) 28 Cal.4th 457, 468-469.)

In 2003, the "Medical Marijuana Program" (MMP) was enacted to create a voluntary program for the issuance of medical marijuana identification cards to qualified persons. (§ 11362.7 et seq.) Patients and their primary caregivers are not subject to arrest for possession, transportation, delivery, or cultivation of medical marijuana so long as they are not in violation of the provisions of the MMP. (§ 11362.71, subd. (e).) Nothing in the CUA or MMP permits the cultivation or distribution of marijuana for profit. (§ 11362.765, subd. (a).)

A patient may not provide marijuana to another individual with the expectation of immunity from prosecution, unless he or she qualifies as the individual's primary caregiver. (See Mentch, supra, 45 Cal.4th at pp. 280-287.) However, qualified patients and their designated primary caregivers may form medical marijuana cooperatives or collectives for such purposes. (§ 11362.775.) Lawfully organized cooperatives and collectives may be exempt from criminal liability under section 11366 only if they operate without profit and comply with the law. (§ 11362.765, subd. (a).) Further, any cooperative or collective that operates as a storefront or mobile retail outlet must comply with local ordinances regulating...