Filed 12/17/14; pub. order 1/15/15 (see end of opn.)




           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                  THIRD APPELLATE DISTRICT
                                                  (El Dorado)
                                                       ----




THE PEOPLE,                                                              C075885

                  Plaintiff and Respondent,                     (Super. Ct. No. P10CRF0460)

         v.

SEAN PATRICK MULCREVY,

                  Defendant and Appellant.




         Defendant Sean Patrick Mulcrevy contends the trial court violated his due process
rights by erroneously precluding him from presenting the affirmative defense that he was
permitted to possess concentrated cannabis pursuant to the Compassionate Use Act of
1996 (CUA), and there is insufficient evidence to support the finding he violated his
probation by possessing concentrated cannabis because he has an adequate physician’s
recommendation. The Attorney General agrees, and so do we. Accordingly, we reverse
the judgment that defendant violated his probation by possessing concentrated cannabis.


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                    FACTUAL AND PROCEDURAL BACKGROUND

          In 2011, defendant pleaded no contest to unlawful exhibition of a firearm (Pen.
Code, § 417, subd. (a)(2)) and grand theft (Pen. Code, § 487, subd. (a)). The trial court
suspended imposition of sentencing and granted defendant formal probation for a period
of 36 months. Among the terms of his probation, defendant was ordered to “obey all
laws” and “not to use or possess any controlled substance, including marijuana, unless
you [defendant] have a licensed prescription for the marijuana that is approved by the
court.”

          Defendant was thereafter charged, in 2013, with misdemeanor unlawful
possession of concentrated cannabis (Health & Saf. Code, § 11357, subd. (a)),1 and was
alleged to have violated his probation based on that possession.2 The alleged probation
violation was that defendant failed to “obey all laws.”

          Defendant moved in limine for the trial court to take judicial notice of an Attorney
General’s opinion (86 Ops.Cal.Atty.Gen. 180 (2003)) that concentrated cannabis is
“marijuana” as that term is used in the CUA. The People moved to exclude evidence of
the CUA, contending the reference to the term “marijuana” in the act precludes an
interpretation that concentrated cannabis is also covered by the act because marijuana and
concentrated cannabis are elsewhere separately defined and punished. The trial court
reviewed the existing persuasive authority (86 Ops.Cal.Atty.Gen. 180 (2003); CALCRIM
No. 2377) indicating that concentrated cannabis is covered by the CUA, rejected the
authority as “unsound,” and ruled that “the [CUA] does not apply to concentrated
cannabis” because the CUA does not define marijuana, refer to concentrated cannabis, or


1 Undesignated statutory references are to the Health and Safety Code.

2 Defendant also appealed his misdemeanor conviction; however, that appeal is being
heard by the appellate division of the superior court. Therefore, we limit our analysis to
the probation violation.


                                                2
incorporate statutory definitions of either term. Defendant unsuccessfully moved for
reconsideration of that ruling.

       The evidence adduced at the simultaneous court trial on defendant’s possession
charge and alleged probation violation was as follows: A sheriff’s deputy performed a
probation search on defendant, who admitted he had marijuana on him, and found 0.16
grams of honey oil (recognized by the officer as concentrated cannabis), 0.05 grams of
“dabs” (also recognized as concentrated cannabis), and 3.33 grams of marijuana in three
separate bags in defendant’s pants pocket.

       Defendant testified he had a recommendation from a physician to use marijuana
and THC to treat his migraines and acid reflux and had purchased the marijuana, dabs,
and honey oil at a medical marijuana store for that purpose. The doctor who provided the
recommendation worked for “Sacramento 420 Evaluations.” Defendant admitted he did
not disclose to the doctor that he was on probation, nor did he provide the doctor with any
of his medical records. Defendant testified he did not apply to the court for permission to
use medical marijuana, but believed he was complying with the terms of his probation in
using the medical marijuana upon the recommendation of a physician.

       The trial court found defendant had violated his probation by possessing
concentrated cannabis.3 The court characterized defendant’s medical marijuana


3 The court also found that defendant failed to comply with the terms of his probation
requiring defendant to seek court approval of a medical marijuana recommendation.
However, that was not alleged as the basis of the probation violation; the allegation was
that defendant had failed to “obey all laws.” Since failure to comply with the terms of
probation was not alleged in the revocation petition, it would violate due process notice
requirements for the trial court to revoke probation or find a violation of probation based
on that theory. (See People v. Vickers (1972) 8 Cal.3d 451, 457-460; see also People v.
Urke (2011) 197 Cal.App.4th 766, 776.) That is especially true here, where the only
evidence that defendant failed to obtain court permission to use medical marijuana—the
probation term purportedly violated—is defendant’s testimony. If it had been alleged
defendant failed to comply with the terms of his probation, he may have elected not to

                                             3
recommendation as “suspect, a[t] best” in that defendant did not disclose his probation
status to the recommending physician and the recommendation was obtained from a
business designed to provide these recommendations without any medical information
being provided. Therefore, the court concluded that even if the CUA does apply to
concentrated cannabis, defendant did not have a valid medical marijuana
recommendation. However, the trial court later described defendant’s recommendation
as “facially valid.”

       The court extended defendant’s probation for 24 months on the existing terms and
stayed execution of the sentence pending appeal.

                                      DISCUSSION

       Criminal defendants have a due process right to “be afforded a meaningful
opportunity to present a complete defense.” (California v. Trombetta (1984) 467 U.S.
479, 485 [81 L.Ed.2d 413, 419].) Defendant contends, and the Attorney General agrees,
the trial court violated that right when it prevented him from presenting an affirmative
defense based on the CUA against the allegation he violated his probation by possessing
concentrated cannabis in contravention of section 11357, which criminalizes the
possession of marijuana and concentrated cannabis. If defendant’s due process rights
were violated by that error, then we must reverse the trial court’s order finding defendant
had violated his probation unless the error was harmless beyond a reasonable doubt.
(Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705].) We conclude the court
did err in precluding the defense because concentrated cannabis is covered by the CUA,
and there is insufficient evidence defendant violated his probation in light of that




testify. Thus, due process principles preclude us from relying on defendant’s failure to
obtain court approval as a basis for affirming the trial court’s judgment that defendant
had violated his probation.


                                              4
conclusion. Therefore, we also conclude the court’s error was not harmless and we
reverse the trial court’s judgment.

       The CUA expressly states that “Section 11357, relating to the possession of
marijuana . . . shall not apply to a patient . . . who possesses . . . marijuana for the
personal medical purposes of the patient upon the written or oral recommendation or
approval of a physician.” (§ 11362.5, subd. (d).) This statute has been interpreted to
decriminalize possession of marijuana where the defendant has a recommendation from a
physician to possess marijuana for medical purposes and permits a defendant to raise a
medical defense at trial if he can demonstrate a reasonable doubt of those facts. (People
v. Mower (2002) 28 Cal.4th 457, 471, 474-475, 477-479.) Here, there is no dispute that
defendant had a “facially valid” physician’s recommendation to use medical marijuana,
defendant presented evidence he possessed the concentrated cannabis to treat his medical
conditions, and no evidence was presented to the contrary. Nonetheless, the trial court
found that the affirmative defense codified in section 11362.5 did not apply because the
court concluded “concentrated cannabis” is not “marijuana” for purposes of the CUA.

       We review the trial court’s statutory interpretation of the CUA independently
because it involves a pure question of law. (People ex rel. Lockyer v. Shamrock Foods
Co. (2000) 24 Cal.4th 415, 432.) “In construing statutes, we start with the language of
the statute. [Citation.] ‘ “Absent ambiguity, we presume that the voters intend the
meaning apparent on the face of an initiative measure [citation] and the court may not
add to the statute or rewrite it to conform to an assumed intent that is not apparent in its
language.” ’ ” (People v. Urziceanu (2005) 132 Cal.App.4th 747, 768.) The body
enacting a new law is also “ ‘ “deemed to be aware of statutes and judicial decisions
already in existence, and to have enacted or amended a statute in light thereof.” ’ ”
(People v. Scott (2014) 58 Cal.4th 1415, 1424; Professional Engineers in California
Government v. Kempton (2007) 40 Cal.4th 1016, 1048.)


                                                5
       In November 1996, voters in California approved Proposition 215, the CUA.
(§ 11362.5; People v. Urziceanu, supra, 132 Cal.App.4th at p. 767.) One of the stated
purposes of the CUA is “[t]o ensure that seriously ill Californians have the right to obtain
and use marijuana for medical purposes where that medical use is deemed appropriate
and has been recommended by a physician who has determined that the person’s health
would benefit from the use of marijuana . . . .” (§ 11362.5, subd. (b)(1)(A).) To this end,
the CUA states that “Section 11357, relating to the possession of marijuana . . . shall not
apply to a patient . . . who possesses or cultivates marijuana for the personal medical
purposes of the patient upon the written or oral recommendation or approval of a
physician.” (§ 11362.5, subd. (d).)

       The CUA does not define marijuana or concentrated cannabis. Those terms had
already been defined when the CUA was approved by voters; therefore, the CUA adopts
those existing definitions. (People v. Scott, supra, 58 Cal.4th at p. 1424.) Former
section 11018, added in 1972 and in effect at the time the CUA was adopted, defined
“marijuana” as “all parts of the plant Cannabis sativa L., whether growing or not; the
seeds thereof; the resin extracted from any part of the plant; and every compound,
manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin” and
excluded hemp. (Stats. 1972, ch. 1407, § 3, pp. 2987, 2989.) Section 11006.5, added in
1975, defines “concentrated cannabis” as “the separated resin, whether crude or purified,
obtained from marijuana.” (Stats. 1975, ch. 248, § 1, p. 641.) Thus, based on the plain
language of the statutes, for purposes of the CUA, “concentrated cannabis” is
“marijuana”: The statutory definition of “marijuana” includes the resin extracted from
the Cannabis sativa L. plant and “concentrated cannabis” is that resin. Therefore, the trial
court erred when it found that possession of concentrated cannabis is not covered by the
CUA.




                                              6
       Persuasive authority supports our conclusion. The Attorney General, in its 2003
opinion specifically addressing whether “concentrated cannabis” is included within the
meaning of “marijuana” for purposes of the CUA concluded that it is.
(86 Ops.Cal.Atty.Gen. 180 (2003).) The trial court disregarded this opinion as “poorly
reasoned.” We disagree. The Attorney General relied on section 11001, which provides
that the definitions contained in sections 11002 through 11003 govern construction of the
California Uniform Controlled Substances Act, including the CUA, “[u]nless context
requires otherwise,” to deduce that the definition of “marijuana” codified in section
11018 applies to the CUA. (86 Ops.Cal.Atty.Gen. 180, 185-186 (2003).) The Attorney
General further reasoned that the plain language of the codified definition of
“concentrated cannabis” in section 11006.5 falls within the statutory definition of
“marijuana” codified in section 11018; that a different interpretation of the terms
“marijuana” and “concentrated cannabis” would render language in section 11357,
subdivision (b), differentiating “concentrated cannabis” and “marijuana, other than
concentrated cannabis” superfluous, a result we attempt to avoid in statutory
construction; and nothing in the CUA or any of the ballot materials accompanying
Proposition 215 indicated any intent to treat concentrated cannabis differently from other
marijuana for purposes of the CUA. (86 Ops.Cal.Atty.Gen. 180, 190-194 (2003).) We
find nothing in the Attorney General’s reasoning to give us pause. And, apparently,
neither did the Judicial Council when it accepted jury instruction CALCRIM No. 2377,
which incorporates the CUA as an affirmative defense to possession of concentrated
cannabis based in large part on the Attorney General’s opinion.

       Because “concentrated cannabis” is “marijuana” for purposes of the CUA, the trial
court erred in precluding defendant from presenting a medical defense based on its
contrary conclusion. This error violated defendant’s due process right to present a
defense since the CUA decriminalizes possession of marijuana when, as is the case here,



                                             7
defendant has a “facially valid” recommendation from a physician to possess marijuana
for treatment of a medical condition. Moreover, since the trial court’s determination that
defendant violated his probation was premised upon its erroneous finding that
defendant’s possession of concentrated cannabis was unlawful, we find insufficient
evidence to support that determination in light of our conclusion that the CUA applies to
possession of concentrated cannabis. Accordingly, we reverse the trial court’s judgment
that defendant violated his probation.

                                      DISPOSITION

       The judgment is reversed.


                                                       BUTZ                  , J.



We concur:



      RAYE                  , P. J.



      BLEASE                , J.




                                            8
Filed 1/15/15
                            CERTIFIED FOR PUBLICATION




          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                             THIRD APPELLATE DISTRICT
                                          (El Dorado)
                                               ----


THE PEOPLE,                                                          C075885

                Plaintiff and Respondent,                (Super. Ct. No. P10CRF0460)

        v.                                             ORDER CERTIFYING OPINION
                                                           FOR PUBLICATION
SEAN PATRICK MULCREVY,
                                                        [NO CHANGE IN JUDGMENT]
                Defendant and Appellant.




     APPEAL from a judgment of the Superior Court of El Dorado County, James R.
Wagoner, Judge. Reversed.

      Stephanie L. Gunther, under appointment by the Court of Appeal, for Defendant
and Appellant.

       Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Michael A. Canzoneri and Barton Bowers, Deputy Attorneys General, for
Plaintiff and Respondent.


THE COURT:
        The opinion in the above-entitled matter filed on December 17, 2014, was not certified
for publication in the Official Reports. For good cause it now appears that the opinion should be


                                                1
published in full in the Official Reports and it is so ordered. There is no change in judgment.

(CERTIFIED FOR PUBLICATION.)


FOR THE COURT:



      RAYE                    , P. J.



      BLEASE                  , J.



      BUTZ                    , J.




                                                 2
