People v. Sounatananh

1

THE PEOPLE, Plaintiff and Appellant, v. NICK SOUNATANANH, Defendant and Respondent.

E080757

California Court of Appeals, Fourth District, Second Division

February 22, 2024

NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino County No FVI22001158. Miriam Ivy Morton, Judge. Affirmed.

Jason Anderson, District Attorney, and Cary Epstein, Deputy District Attorney, for Plaintiff and Appellant.

David R. Greifinger, under appointment by the Court of Appeal, for Defendant and Respondent.

OPINION

McKINSTER Acting P. J.

Rob Bonta, Attorney General, Robert W. Byrne, Assistant Attorney General, Myung J. Park, Carol A. Z. Boyd and Janelle M Smith, Deputy Attorneys General, as Amicus Curiae for State Water Resources Control Board.

INTRODUCTION

In this appeal, the People contend the trial court erred in granting defendant and respondent Nick Sounatananh's motion to dismiss pursuant to Penal Code section 995. The People argue defendant's failure to obtain a permit through the regional water board is sufficient evidence to demonstrate a violation of Health and Safety Code section 11358 subdivision (d)(3)(B), marijuana cultivation with a concurrent violation of Water Code section 13260. The People also argue the mere use of water in outdoor commercial cannabis cultivation constitutes waste, and evidence of such use, by itself, is sufficient to constitute a violation of Health and Safety Code section 11358, subdivision (d)(3)(B). We affirm.

PROCEDURAL BACKGROUND

On May 6, 2022, the People filed a felony complaint charging defendant with marijuana cultivation in violation of Health and Safety Code section 11358, subdivision (d)(3). On September 27, 2022, a preliminary hearing was held. At the conclusion of evidence and argument, the magistrate found sufficient cause to believe defendant committed a violation of Health and Safety Code section 11358, subdivision (d)(3)(b). In discussing the evidence presented, the magistrate commented, "I don't suppose that marijuana plants that are being cultivated in this manner just subsist on water." The magistrate also opined, "I believe a large operation like this would require all kinds of chemicals to keep these plants going that can contaminate the water." Defense counsel pointed out to the magistrate "[t]here's no testimony of that. There's no evidence of that." The magistrate responded, "[w]ell, I think that . . . is why a permit is required for such an operation ...." Prior to ruling, the magistrate concluded, "[a]gain, the Court has to assume there's going to be some contamination from this-the size of this project, the type of project, how it's being done, . . ."

On October 13, 2022, defendant filed a motion to dismiss pursuant to Penal Code section 995. In his motion, defendant argued the absence of a permit is insufficient to prove a violation of Water Code section 13260.^[1] Defendant also argued the People failed to prove actual discharge of waste at the preliminary hearing. The People filed an opposition to defendant's motion to dismiss and a supplemental opposition. In their two oppositions, the People argued that the absence of a permit alone is sufficient to prove a violation of section 13260. The People also argued use of water, in commercial marijuana cultivation, by itself, constitutes waste and thus violates section 13260. On January 27, 2023, defendant's motion was heard and granted by a superior court judge. The superior court judge reasoned, "There is no indication in this preliminary hearing transcript that there's anything other than water and some plants." In evaluating the legal issues, the superior court judge commented, "[a]nd we are all sitting here and agreeing that there was no illegal discharge of waste. Now, perhaps they need a permit to cultivate the marijuana, so their marijuana cultivation process needs to be shut down, but does it rise to this concurrence with a violation of environmental law? It is not as you have it written here." In granting defendant's motion, the superior court judge stated, "I have reviewed Water Code section 13260. I don't see anything in this preliminary hearing [transcript] that rises to the level to hold to answer in violation of this code section."

STATEMENT OF FACTS^[2]

Deputy Griego had been a sworn deputy for approximately 15 years. In 2021, Deputy Griego was assigned to the marijuana enforcement team where he received inhouse training regarding marijuana grows and cultivation of marijuana. During his year on the marijuana enforcement team, Deputy Griego conducted approximately 70 investigations on his own and participated in several hundred investigations with other members of his team. On March 3, 2022, Deputy Griego served a search warrant for a suspected illegal marijuana cultivation in San Bernadino County, specifically in Newberry Springs. Deputy Griego and his team scouted the area two days prior to executing the search warrant and observed two marijuana grow houses on the property. The grow houses were each approximately 40 feet long by 40 feet wide. Deputy Griego likened the structure to the skeleton of a greenhouse. There were no permanent structures on the property.

Upon arriving at the location to execute the search warrant, Deputy Griego saw a single trailer on the property. Deputy Griego and his team made announcements and defendant exited the trailer. Defendant's date of birth was established by his identification card to be October 6, 1971. In speaking to defendant, Deputy Griego noticed defendant's hands were dirty, had soil or dirt on them, and were tinted green.

Deputy Griego found the appearance of defendant's hands to be consistent with someone handling marijuana plants. Deputy Griego also compared defendant's shoes to shoe impressions left around the property and found them to be a match. When interviewed, defendant eventually admitted to being at the location to water and tend to the marijuana plants.

During a search of the property, 630 marijuana plants were located. Deputy Griego also observed four water cubes, each containing approximately 275 gallons of water. It appeared the water cubes were being used to water the marijuana plants. The water cubes had hoses and irrigation running to the grow houses. The hoses were being used to water the marijuana plants by hand. The soil around the plants was damp indicating to Deputy Griego the plants had recently been watered. A marijuana plant requires one to five gallons of water a day. The size of the water cubes located on the property was consistent with the volume of water necessary to water the marijuana plants found. A well was also located on the property. Deputy Griego did not investigate the nature of the well or whether it was operational.

A permit from the regional water board is required to cultivate marijuana. K. Bindl is an environmental scientist who works for the water board. K. Bindl is in charge of water code violations and has received training from attorneys at her office regarding water waste violations and other water code violations. K. Bindl has also received training on internal and commercial policies regarding water. K. Bindl's agency issues water discharge permits for marijuana cultivation. Water discharge permits are required for any legal water discharge from hemp grows and other marijuana cultivations. K. Bindl reviewed the records for the property Deputy Greigo searched and found no water discharge permit had been issued. K. Bindl opined that based on her training, education, and experience, failure to have a discharge permit for a marijuana cultivation is a violation of section 13260.

Samples of the marijuana located on the property were taken and booked into evidence. The marijuana samples were later tested by the supervisor of the lab used by the San Bernardino Sheriff's Department (Sheriff's Department). The lab supervisor, having 25 years of laboratory experience and using scientifically accepted methods, tested the marijuana provided by the Sheriff's Department. Based on the results of the testing, the lab supervisor opined that the substance provided by the Sheriff's Department was marijuana.

STANDARD OF REVIEW

At the preliminary hearing, the magistrate's role "is to determine whether there is 'sufficient cause' to believe [the] defendant guilty of the charged offense." (People v. Abelino (2021) 62 Cal.App.5th 563, 573 (Abelino).) Sufficient cause is"' "generally equivalent to 'reasonable and probable cause.'" '" (People v. San Nicholas (2004) 34 Cal.4th 614, 654, quoting People v. Williams (1988) 44 Cal.3d 883, 924).) Reasonable or probable cause exists where"' "such a state of facts as would lead a man of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused." '" (San Nicholas, at p. 654.)

Under Penal Code Section 995, a defendant may move to dismiss an information on the ground that the defendant "had been committed without reasonable or probable cause." (Pen Code, § 995, subd. (a)(2)(B).) In reviewing a superior court's ruling on a motion to dismiss pursuant to Penal Code section 995, the reviewing court directly reviews the magistrate's ruling at the preliminary hearing. (People v. Superior Court (Mendez) (2022) 86 Cal.App.5th 268, 277).) The reviewing court "draw[s] all reasonable inferences in favor of the information [citations] and decide[s] whether there is probable cause to hold the defendant[] to answer, i.e., whether the evidence is such that 'a reasonable person could harbor a strong suspicion of the defendant's guilt' [citations]." (Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1072.)

"[A]n . . . information should be set aside only when there is a total absence of evidence to support a...