Filed 3/17/14 P. v. Sandercock CA2/6
Opinion following rehearing
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 SIX

THE PEOPLE,                                                                   2d Crim. No. B238858
                                                                            (Super. Ct. No. F455771)
     Plaintiff and Appellant,                                               (San Luis Obispo County)

v.                                                                       OPINION ON REHEARING

THOMAS ANTHONY SANDERCOCK,
JR., et al.,

     Defendants and Respondents.

                   Anthony Sandercock, Jr., Christopher Austin and Amy Austin (collectively,
"Defendants") were charged with selling marijuana and possession of marijuana for sale.
(Health & Saf. Code, §§ 11359 & 11360.)1 In a pretrial motion, the trial court approved a
defense instruction under the Medical Marijuana Program Act (MMPA). (§§ 11362.7 et
seq.) The People declared they could not proceed under the instruction. The trial court
entered judgment of dismissal and the People appeal.
                   We issued a published opinion reversing the trial court because the defense
instruction standing alone appeared to allow what the MMPA prohibited, the retail sale of
marijuana at a profit. But the court intended to give other instructions related to the
MMPA defense that the parties neglected to mention in their initial briefing. That
prompted us to grant rehearing.

         1
        All statutory references are to the Health and Safety Code unless stated
otherwise.
                We have reviewed the entire MMPA instruction and conclude it does not
adequately cure the flaw in the challenged instruction. We reverse and remand.
                                             FACTS2
                In the fall of 2010, a San Luis Obispo detective purchased marijuana from
people who purported to be representing three different medical marijuana dispensaries
called Hopeful Remedies, Open Access Foundation, and West Coast Caregiving
Consulting. In each instance, the detective called the dispensary, and someone showed
up at her doorstep. The delivery person verified that the detective had a physician's
medical marijuana recommendation or asked her to sign a document indicating the
delivery person was her caregiver. The delivery person then sold her a quantity of
marijuana. For their role in owning or operating one of these dispensaries, Defendants
were charged with selling marijuana and possessing marijuana for sale.
                                     JURY INSTRUCTION
                Prior to trial, the trial court ruled that it would give a jury instruction as
follows: "Providing money in exchange for harvested marijuana may, in itself, constitute
'associating for the purpose of collectively cultivating marijuana.' Associating for the
purpose of collectively cultivating marijuana does not require any prior relationship
between the parties."
                The People declared they could not proceed under the instruction. The trial
court dismissed the cases and the People appeal. (See People v. Chacon (2007) 40
Cal.4th 558, 565 [where the prosecution announces it is unable to proceed as a result of a
pretrial ruling, the People may appeal the order of dismissal].)
                                          DISCUSSION
A. Initial Appeal
                In the initial briefing, the People argued that the instruction was legally
incorrect.




       2
           By stipulation of the parties, the facts are taken from police reports.

                                                 2
              The Compassionate Use Act ("CUA") and the MMPA together provide a
defense to prosecution for these offenses when a defendant is able to raise a reasonable
doubt that the possession or sale is effectuated by "[q]ualified 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
[to] collectively or cooperatively . . . cultivate marijuana for medical purposes."
(§ 11362.775; People v. Mower (2002) 28 Cal.4th 457, 477, 481.)
              The People's primary contention was that the instruction (1) made the
MMPA defense applicable when the buyer's sole connection to the collective was
the purchase itself; and (2) treated delivery-based marijuana dispensaries the same as
"brick-and-mortar," storefront dispensaries. In attacking the instruction's sanction of
"retail sales," the People also obliquely identified a third possible defect: By stating that
paying for marijuana may "in itself" constitute associating for the purpose of collectively
cultivating marijuana, the instruction indicated that Defendants need show nothing but
the payment itself to qualify under the MMPA.
              The People have since acknowledged that intervening decisions have
rejected both its primary challenges. (See City of Monterey v. Carrnshimba (2013) 215
Cal.App.4th 1068, 1085 & fn. 17 [MMPA reaches mobile dispensaries]; People v.
Jackson (2012) 210 Cal.App.4th 525, 529-530 [MMPA does not require buyer to have
further connection with marijuana collective beyond purchasing marijuana].)
              However, consistent with our obligation to independently review jury
instructions (People v. Cole (2004) 33 Cal.4th 1158, 1210), we concluded that the final
problem identified by the People rendered the instruction defective. By stating that
"[p]roviding money in exchange for harvested marijuana may, in itself, establish the
MMPA defense, the instruction seemingly applied to "for-profit" dispensaries. But the
CUA and MMPA are explicitly limited to non-profit dispensaries. (§ 11362.765, subd.
(a); People v. Solis (2013) 217 Cal.App.4th 51, 58-61; see also California Attorney
General's 2008 Guidelines for the Security and Non-Diversion of Marijuana Grown for
Medical Use, Sections IV.B.5, IV.B.6 <http:// ag. ca. gov/ cms_ attachments/ press/ pdfs/

                                              3
n 1601_ medical marijuana guidelines. pdf> as of 2/27/14.) Because the instruction
violated this mandate, we reversed.
B. Rehearing
                After we issued our opinion, Defendants sought rehearing. For the first
time, they told us that the instruction the People challenged was just one part of a more
lengthy MMPA defense instruction. This was news to us. The parties' initial briefing
made no mention of additional instructions; to the contrary, footnote 3 of the People's
opening brief referred solely to an "initial draft copy" of instructions discussed off the
record, but never alluded to anything beyond the two-sentence instruction challenged in
its initial briefing.
                In any event, the additional proposed MMPA defense instructions approved
by the trial court state in pertinent part:
                "Defendants assert that Health and Safety Code section 11362.775 applies
to their conduct as a defense. They have the burden of producing evidence of such
defense to the degree that it raises a reasonable doubt that they are guilty of the crimes
charged as violations of Health and Safety Code §§11359 and 11360.
                "In order to raise a reasonable doubt of their guilt, they must produce
evidence that:
                "1. They had valid recommendations from qualified physicians to use
marijuana for medical purposes;
                "2. They operated a collective which is a business or farm or other
enterprise which facilitates the collection efforts of patients and caregiver members,
including the allocation of costs and revenues. (People v. Hochanel (2009) 176
Cal.App.4th 997, 1010; quoting AG guidelines.);
                "3. They reasonably believed that Detective Chastain had a valid
physician's recommendation[;]
                "4. They reasonably believed that Detective Chastain agreed to be a
member of the collective so that they reasonably expected to receive labor, resources or



                                               4
money from her to help finance the operation so she could receive medical marijuana.
(Health & Safety Code, §11362.655(b)(3); People v. Hochanel, supra, at p. 1010.)[;]
              "5. They provided the marijuana to Detective Chastain for an amount of
money which did not provide them with any more than their reasonable cost of producing
and providing same to members of their collective [italics added];
              "6. They intended to, and did, maintain records of all sales and all
members' contributions of labor, resources or money to the enterprise. (Ibid.; People v.
Urziceann (2005) 134 Cal.App.4th 747, 785.)"
              Defendants contend that paragraph 5 of the lengthier MMPA defense
instruction cures the defect we previously identified because it informs the jury that any
sale must not be for profit. After soliciting and considering further briefing and oral
argument from the parties, our conclusion that the MMPA instruction is problematic
remains the same. What differs is our reasoning.
              The fifth paragraph of the full instruction certainly sets forth the MMPA's
"no profit" mandate. However, the challenged instruction dilutes the force of this "no
profit" language and, worse yet, can be read to supersede it. As approved by the trial
court, the challenged instruction is independent of—and follows after—what purports to
be a listing of the six elements of the MMPA defense. By indicating that "[p]roviding
money in exchange for harvested marijuana may, in itself, constitute associating for the
purpose of collectively cultivating marijuana," this language could be read to trump the
non-profit requirement. The danger of confusion is compounded by the absence of any
prior reference in the instruction to "associating for the purpose of collectively cultivating
marijuana."
              Defendants argue that we may not evaluate whether the challenged
instruction is potentially misleading vis-à-vis the "no profit" mandate because the People
did not raise that specific argument to the trial court. We disagree. But even if this is the
case, "we review the trial court's ruling, and not its rationale" (Avidity Partners, LLC v.
State of Calif. (2013) 221 Cal.App.4th 1180, 1192), and the trial court's ruling regarding
the challenged instruction is properly before us. In such cases, we are not "powerless to

                                              5
correct what might be an obvious miscarriage of justice." (McCarty v. Dept. of Transp.
(2008) 164 Cal.App.4th 955, 984.) Defendants further assert that Chacon trumps this
other authority, but Chacon upheld the power of appellate courts to review the propriety
of a jury instruction prompting a dismissal. (People v. Chacon, supra, 40 Cal.4th at pp.
565-566.) That is what we have done.
               Our conclusion that the challenged instruction is confusing and misleading
is the last step for us. It appears that redrafting is in order.
               Because we are not in the business of issuing advisory opinions or
formulating jury instructions, we leave it to the trial court and the parties to draft
appropriate instructions on remand.
               The judgment is reversed, and the matter remanded for further proceedings.
               NOT TO BE PUBLISHED.




                                             HOFFSTADT, J.*


We concur:



               GILBERT, P. J.



               PERREN, J.




       *
         (Judge of the Superior Court of Los Angeles County, assigned by the Chief
Justice pursuant to art. 6, § 6 of the Cal. Const.)

                                                6
                            Barry T. LaBarbera, Judge

                    Superior Court County of San Luis Obispo
                      ______________________________


              Gerald T. Shea, District Attorney, Jesse Marino, Craig Von Rooyen,
Deputy District Attorneys, for Plaintiff and Appellant.
              Laura S. Kelly, under appointment by the Court of Appeal, for
Defendants and Respondents Thomas Anthony Sandercock, Jr., Christopher
Austin and Amy Austin.
              Law Offices of James B. Devine, APC, James B. Devine for
Defendants and Respondents Valarie Hosking, David Hosking and Steven
Gordon.
