Filed 2/26/14 P. v. Byron CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B241866

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. NA087478)
         v.

JOSEPH BYRON et al.,

         Defendants and Respondents.



         APPEAL from an order of the Superior Court of Los Angeles County. Joan
Comparet-Cassani, Judge. Affirmed.
         Steve Coolie and Jackie Lacey, District Attorneys, Roberta Schwartz, Phyllis
Asayama and Cassandra Hart, Deputy District Attorneys, for Plaintiff and Appellant.
         J. David Nick and E. Michael Linscheid, for Defendant and Respondent Joseph
Byron.
         John Steinberg, under appointment by the Court of Appeal, for Defendant and
Respondent Joseph Grumbine.




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         A jury found Joseph Byron and Joseph Grumbine guilty of several counts of sale
of marijuana, grand theft of utility services, and tax evasion, but the trial court ordered a
new trial after concluding multiple errors resulted in defendants being denied a fair trial.
         The People appeal the order, contending (1) the trial court lacked jurisdiction to
order a new trial on the ground that defendants were denied a fair trial; (2) the trial court
lacked jurisdiction to order a new trial on grounds never raised by defendants; and (3)
defendants received a fair trial.
         The People’s contentions are without merit. Under the California Constitution, a
trial court may order a new trial when a defendant has been denied a fair trial, and the
trial court here did not abuse its discretion in doing so. Thus, we affirm the new trial
order.
                                      BACKGROUND
         Defendants operated two storefront medical marijuana dispensaries and a
cultivation facility in the City of Long Beach. In 2009, they sold marijuana to Long
Beach police officers acting undercover, in transactions the police secretly videorecorded.
Long Beach police then executed search warrants at the dispensaries, the cultivation
location, and defendants’ residences, seizing marijuana, cash, and business records.
Defendants were jointly charged with twelve counts of sale of marijuana (Health & Saf.
Code, § 11360, subd. (a)) and Byron was separately charged with two counts of grand
theft of electricity (Pen. Code, § 487, subd. (a)) and two counts of tax evasion (Rev. &
Tax. Code, § 7153.5).
         Defendants pleaded not guilty and asserted an affirmative defense provided by the
Medical Marijuana Program Act, Health and Safety Code section 11362.7, et seq.
Specifically, defendants relied on section 11362.775, which provides: “Qualified
patients, persons with valid identification cards, and the designated primary caregivers of
qualified patients and persons with identification cards, who associate within the State of
California in order collectively or cooperatively to cultivate marijuana for medical
purposes, shall not solely on the basis of that fact be subject to state criminal sanctions



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under Section . . . 11360 [transporting, importing, selling, furnishing, or giving away
marijuana] . . . .”
       In September and November 2011, the trial court, Judge Charles D. Sheldon
presiding, granted the prosecution’s motion to exclude defendants’ medical marijuana
defense, specifically prohibiting them from calling any witnesses pertaining to the
defense. On November 28, 2011, we granted defendants’ petition to overturn that ruling
and remanded the matter for trial.
       On the day of remand, which was also the first day of trial, defendants moved for a
two-day continuance to permit them to subpoena witnesses relevant to their newly
revived defense. Judge Sheldon denied the motion and trial commenced immediately.
       During a three-week jury trial, defendants testified they were qualified patients
who operated a medical marijuana collective, members of which were all qualified
patients, and thus did not engage in the illicit sale of marijuana. The prosecution
presented evidence that defendants operated their dispensaries similar to retail
establishments, took nothing but cash from members of the purported collective, and
profited from the sale of marijuana. The prosecution also presented evidence that one of
the dispensaries used un-metered electricity and Byron failed to file tax returns.
       The jury found defendants guilty on all counts.
       Before sentencing, Byron filed a challenge to Judge Sheldon for cause. (Code
Civ. Proc., § 170.1.) On January 11, 2012, Judge Sheldon recused himself, and the case
was reassigned to Judge Joan Comparet-Cassani. Defendants then filed a motion for new
trial, contending (1) insufficient evidence supported the verdicts; (2) at least one juror
committed misconduct by conducting independent research; and (3) Judge Sheldon
misinstructed the jury on the medical marijuana defense and committed several other
procedural and evidentiary errors, including limiting their witnesses and denying their
request for a continuance, all of which resulted in defendants being denied a fair trial.
       At a hearing on April 13, 2012, Judge Comparet-Cassani rejected some of
defendants’ contentions, found others to be true, and identified several other errors that
contributed to an unfair trial. Judge Camparet-Cassani was greatly concerned about

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denial of defendants’ motion for a continuance, limitations placed on the number of
defense witnesses, instances of possible juror misconduct, and several evidentiary,
instructional and procedural errors that infringed on defendants’ right to receive a fair
trial. Further, Judge Comparet-Cassani found the trial court set an inappropriate tone by
complimenting prosecution counsel in front of the jury while frequently denigrating
defense counsel. Judge Camparet-Cassani found the trial court overruled numerous
meritorious evidentiary objections raised by defense counsel, yelled at counsel,
prohibited sidebar conferences, threatened counsel with contempt several times in the
presence of the jury, and refused to permit counsel, who was crying at one point, a
moment to compose herself before the jury was brought in. Granting defendants’ motion,
Judge Camparet-Cassani stated, “I’m speechless. It was a terrible trial. It was unfair.”
       The People appeal the order granting a new trial.
                                       DISCUSSION
       A trial court is responsible for ensuring that an accused receives a fair trial.
(Glasser v. United States (1942) 315 U.S. 60, 71, superceded on other grounds as stated
in Bourjaily v. United States (1987) 483 U.S. 171, 107; People v. Fosselman (1983) 33
Cal.3d 572, 582.) When the trial has not been fair, the trial court, in its exercise of
supervisory power over the verdict, must order a new trial, and thereby expedite justice
by avoiding appellate review or habeas corpus proceedings. (People v. Cornwell (2005)
37 Cal.4th 50, 87, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th
390, 421, fn. 22 [spectator misconduct]; People v. Sherrod (1997) 59 Cal.App.4th 1168
[failure to grant a continuance]; Merrill v. Superior Court (1994) 27 Cal.App.4th 1586
[prosecution’s failure to disclose exculpatory evidence]; People v. Albarran (2007) 149
Cal.App.4th 214 [due process violation]; People v. Davis (1973) 31 Cal.App.3d 106, 110
[deprivation of material evidence]; see also People v. Fosselman (1983) 33 Cal. 3d 572,
582-583 [a new trial motion is the proper and preferred method of raising the fairness
issue].)
       The trial court enjoys broad discretion in ruling upon a motion for new trial.
(People v. Ault (2004) 33 Cal.4th 1250, 1260.) The court “is not bound by conflicts in

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the evidence, and reviewing courts are reluctant to interfere with a decision granting or
denying such a motion unless there is a clear showing of an abuse of discretion.” (People
v. Robarge (1953) 41 Cal.2d 628, 633.)
       The People contend Judge Camparet-Cassani abused her discretion in granting
defendants’ motion for new trial on the ground that they were deprived of a fair trial.
       “The right of an accused in a criminal trial to due process is, in essence, the right
to a fair opportunity to defend against the State’s accusations. The rights to confront and
cross-examine witnesses and to call witnesses in one’s own behalf have long been
recognized as essential to due process.” (Chambers v. Mississippi (1973) 410 U.S. 284,
294.) A trial court may not deny a short continuance where to do so would deprive the
defendant of a reasonable opportunity to prepare. (People v. Sakarias (2000) 22 Cal.4th
596, 646; People v. Locklar (1978) 84 Cal.App.3d 224, 230.)
       On September 22, 2011, Judge Sheldon denied defendants’ request to present an
affirmative medical marijuana collective defense. On November 2, Judge Sheldon
excluded any defense witnesses that were to testify as to that defense. On November 28,
the trial court received our order reinstating the defense. On that same day, defendants
requested a two-day continuance to permit them to subpoena their witnesses. The request
was denied on the ground that 50 pre-qualified jurors were present in the courthouse and
ready for trial. Trial commenced immediately. From these facts, it was well within
Judge Camparet-Cassani’s broad discretion to find defendants were denied the
fundamental right to call witnesses.
       The People approach the question as if Judge Camparet-Cassani was an appellate
court reviewing a trial court’s action for abuse of discretion. They refer to Judge Sheldon
as the “trial court” and Judge Camparet-Cassani as the “reviewing court” and argue the
trial court has broad discretion in determining whether to grant a continuance, and may
be countermanded by a reviewing court only if the decision was unreasoning and
arbitrary. The People have the correct standard of review but they apply it to the wrong
court. Here, the trial court, not a reviewing court, granted defendants’ motion for new
trial. It makes no difference that different judges were involved—they were both trial

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court judges. The question therefore is not whether Judge Sheldon abused his discretion
in denying the continuance, but whether Judge Camparet-Cassani’s finding that the denial
resulted in an unfair trial was arbitrary and unreasoning.
       We cannot conclude it was. When a defense has been precluded and witness
testimony probative to that defense excluded, defense counsel may reasonably be
expected to focus their efforts accordingly, preparing for issues the trial court considers to
be relevant and ignoring those the court has indicated cannot be raised. When that
landscape changes, for example after appellate reversal and remand, defense counsel may
find themselves unprepared. Further, defense counsel may find it difficult to prepare an
effective defense while trial is ongoing. In that setting, it is reasonable to conclude a two-
day continuance is essential to ensure a fair trial.
       The People argue defendants’ counsel should have predicted we would reverse the
trial court’s order precluding the medical marijuana collective defense and should have
had their witnesses ready. Even if they could not anticipate our reversal, the People
argue, defense counsel could have subpoenaed (and presumably prepared) their witnesses
during the two weeks the prosecution took to present the case-in-chief. These points are
irrelevant. The question is not whether on balance defense counsel should have taken
one action or another, but whether circumstances permitted the trial court reasonably to
conclude counsel were denied a fair opportunity to prepare. The timeline itself suggests
they were denied such an opportunity. Whether counsel should have acted otherwise was
a question for the trial court to resolve. Our review is only for abuse of discretion.
       The People argue the trial court lacked jurisdiction to order a new trial on the
ground that the trial was unfair because Penal Code section 1181, which authorizes a new
trial under specified conditions, does countenance a new trial on that ground. The
argument is without merit. True, section 1181 sets forth nine circumstances under
which—“only” under which—a new trial may be ordered, and denial of a fair trial is not
among them. For example, a trial court may grant a new trial when the jury has received
evidence out of court, the jury has been guilty of misconduct, or the verdict is contrary to



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law or the evidence. (Pen. Code, § 1181.) Nevertheless, the Legislature is without
power to cabin the constitutional duty of trial courts to ensure that defendants be
accorded due process. (People v. Davis, supra, 31 Cal.App.3d at p. 110.)

1
    Penal Code section 1181 provides:

“When a verdict has been rendered or a finding made against the defendant, the court
may, upon his application, grant a new trial, in the following cases only:

“1. When the trial has been had in his absence except in cases where the trial may
lawfully proceed in his absence;

“2. When the jury has received any evidence out of court, other than that resulting from a
view of the premises, or of personal property;

“3. When the jury has separated without leave of the court after retiring to deliberate
upon their verdict, or been guilty of any misconduct by which a fair and due
consideration of the case has been prevented;

“4. When the verdict has been decided by lot, or by any means other than a fair
expression of opinion on the part of all the jurors;

“5. When the court has misdirected the jury in a matter of law, or has erred in the
decision of any question of law arising during the course of the trial, and when the district
attorney or other counsel prosecuting the case has been guilty of prejudicial misconduct
during the trial thereof before a jury;

“6. When the verdict or finding is contrary to law or evidence, but if the evidence shows
the defendant to be not guilty of the degree of the crime of which he was convicted, but
guilty of a lesser degree thereof, or of a lesser crime included therein, the court may
modify the verdict, finding or judgment accordingly without granting or ordering a new
trial, and this power shall extend to any court to which the cause may be appealed;

“7. When the verdict or finding is contrary to law or evidence, but in any case wherein
authority is vested by statute in the trial court or jury to recommend or determine as a part
of its verdict or finding the punishment to be imposed, the court may modify such verdict
or finding by imposing the lesser punishment without granting or ordering a new trial,
and this power shall extend to any court to which the case may be appealed;

“8. When new evidence is discovered material to the defendant, and which he could not,
with reasonable diligence, have discovered and produced at the trial. When a motion for

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       The People also argue the trial court lacked jurisdiction to order a new trial on
grounds never raised by respondents. They cite Judge Camparet-Cassani’s findings of
several evidentiary, instructional and procedural errors, several of which were not raised
by defendants in their motion and all of which, the People contend, can be explained or
were de minimis.
       The argument proceeds on a false premise. The trial court expressly found the
trial was unfair, in part because Judge Sheldon denied defendants’ request for a
continuance. Defendants’ expressly argued in their motion for new trial that they were
“denied a right to a fair trial,” in part because their request for a continuance was denied.
The trial court thus granted a new trial on the exact ground raised by defendants. Judge
Camparet-Cassani’s findings that other errors also rendered the trial unfair were
unnecessary to her ruling.




a new trial is made upon the ground of newly discovered evidence, the defendant must
produce at the hearing, in support thereof, the affidavits of the witnesses by whom such
evidence is expected to be given, and if time is required by the defendant to procure such
affidavits, the court may postpone the hearing of the motion for such length of time as,
under all circumstances of the case, may seem reasonable.

“9. When the right to a phonographic report has not been waived, and when it is not
possible to have a phonographic report of the trial transcribed by a stenographic reporter
as provided by law or by rule because of the death or disability of a reporter who
participated as a stenographic reporter at the trial or because of the loss or destruction, in
whole or in substantial part, of the notes of such reporter, the trial court or a judge,
thereof, or the reviewing court shall have power to set aside and vacate the judgment,
order or decree from which an appeal has been taken or is to be taken and to order a new
trial of the action or proceeding.”


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                                        DISPOSITION
      The order granting a new trial is affirmed.
      NOT TO BE PUBLISHED.




                                                              CHANEY, Acting P. J.


      We concur:




                    JOHNSON, J.




                    MILLER, J.*




      *
          Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

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