Filed 8/22/14




                             CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FOURTH APPELLATE DISTRICT

                                      DIVISION THREE


THE PEOPLE,

    Plaintiff and Respondent,                         G048535

        v.                                            (Super. Ct. No. 10HF1852)

BORZOU BO BANIANI,                                    OPINION

    Defendant and Appellant.



                  Appeal from a judgment of the Superior Court of Orange County, David A.
Hoffer, Judge. Reversed and remanded.
                  Law Office of Scott C. Thomas and Scott C. Thomas; Law Offices of Glew
& Kim, Christopher Glew; for Defendant and Appellant.
                  Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and
Kimberley A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.
                                  *            *             *
              Defendant, a founding member of a medical marijuana cooperative, was
charged with a sale of marijuana (Health & Saf. Code, §§ 11360, subd. (a); all further
undesignated statutory references are to this code) and possession of marijuana for sale (§
11359). The first jury was unable to reach a verdict, splitting six to six on the sales
charge and nine to three for not guilty on the possession for sale charge. Defendant was
permitted a defense under the Medical Marijuana Program Act (MMPA; § 11362.5 et
seq.) in that trial. On retrial, he was denied the defense. The second jury was still unable
to reach a verdict on the sales charge, but convicted defendant of possessing marijuana
for sale. Because we find he was entitled to a defense under the MMPA and the error in
precluding the defense was prejudicial, we reverse.
                                              I
                                 FACTS AND PROCEDURE
A. Procedural Background
              Defendant was charged in an information with a sale of marijuana on
March 23, 2010 (§ 11360, subd. (a); count one) and possession of marijuana for sale on
April 7, 2010 (§ 11359; count two). His defense was that he had a physician’s
recommendation to use medical marijuana, he ran a medical marijuana cooperative in
compliance with the MMPA, he was not present on the date of the sale, and the sale was
made by a person who did not comply with the protocol of the cooperative. As noted
above, the first jury hung six to six on the sales count and nine to three for not guilty on
the possession for sale count.
              In the second trial, the court held defendant was not entitled to a defense
under the MMPA. The second jury was unable to reach a verdict on count one and found
defendant guilty on count two, possession of marijuana for sale. The court placed
defendant on three years of formal probation and imposed various fines, fees, and
conditions. The court expressly authorized defendant’s continued use of medical



                                              2
marijuana due to his medical condition. Count one was then dismissed on the People’s
motion.


B. Facts
             1. Prosecution Evidence
             In March 2010, Elijah Hayward worked as an undercover narcotics
detective with the Newport Beach Police Department. Using a fake name and driver’s
license, he visited a physician and obtained a recommendation to use medical marijuana.
             On March 23, 2010, Hayward went to a two-story business building located
on Campus Drive, based on information a marijuana dispensary was located there. He
went to an office on the second floor. On the door was a sign that stated, “by
appointment only.” Hayward knocked and saw someone peek through the blinds. A
male in his 20’s, with dark hair and an olive complexion answered the door. The male
said his name was Sean, and invited Hayward in.1 Sean directed Hayward to a small
waiting room and asked for his identification and physician’s recommendation, which
Hayward then gave him. Sean left and entered another room. After Hayward heard what
sounded like a copying machine, Sean reappeared in the waiting room, returned the
identification and recommendation to Hayward, and gave him a two-page membership
application for Herbal Run Marijuana Collective (Herbal Run). Hayward signed the
application and gave it back to Sean. Sean took the signed membership application back
into the same room he had taken Hayward’s identification and recommendation.
             When Sean returned, he showed Hayward into another room. This one
contained a countertop and two refrigerators with clear, glass doors. There were a
number of jars of marijuana on display and a dry erase board on the wall. Hayward said
the board contained the names of different strains of marijuana and their prices. Hayward

             1Defendant identified Sean as Shajad Khalaj, the treasurer of Herbal Run
Marijuana Collective.

                                            3
told Sean he wanted an eighth of an ounce of one of the strains. Sean weighed it out and
Hayward paid him $60. Sean placed the container of marijuana in a bag and gave
Hayward a marijuana cigarette and a small brownie, neither of which had Hayward
requested.
              On April 7, 2010, Officer Brian Mack of the Newport Beach Police
Department was dispatched to the same location on Campus Drive based on reports of the
smell of burnt marijuana at the location. Mack too smelled burnt marijuana. Mack
knocked on the door and the smell of burnt marijuana got stronger when defendant
answered the door. Mack explained why he was there and defendant said he had a
marijuana recommendation permitting him to smoke marijuana.
              Mack entered the office and asked defendant what business was run at the
location. Defendant said he operates a property management and real estate investment
company, Advantage. He added he also runs a marijuana dispensary in Costa Mesa and
he uses the Advantage office as a storage facility.
              Defendant unlocked doors to separate rooms, enabling the officers to search
those rooms. During the search, officers found, inter alia, 78 pre-rolled marijuana
cigarettes, seven lollipops labeled “candy containing marijuana,” 24 chocolate bars
containing marijuana, 12 plastic packets of salad dressing containing marijuana, a glass
jar containing a pound of marijuana, a silver canister containing 16 grams of marijuana,
and a plastic bag containing marijuana “shake.” The officers also found a white dry erase
board listing strains of marijuana and prices for the different strains. Additionally, the
police found a three-ring binder containing a ledger of business transactions, and $310.


              2. Defense Evidence
              After the court held the defendant was not entitled to a defense under the
MMPA, the defense introduced the following evidence. Defendant had a valid
physician’s recommendation to use medical marijuana, and a valid state medical

                                              4
marijuana identification card and caregiver license, meaning he could be a caregiver to a
patient with a recommendation for marijuana use.
              Defendant started a medical marijuana collective, Herbal Run, because he
had an uncle who passed away from pancreatic cancer. It was not defendant’s intent to
sell marijuana, as the collective is a nonprofit entity. Prior to creating the collective,
defendant consulted with Attorney Stewart Richlin. Richlin, who also testified, drafted
the collective’s bylaws, reviewed state laws and the Attorney General’s Guidelines with
defendant, and filed the nonprofit articles of incorporation for Herbal Run. Additionally,
defendant acquired a State of California Board of Equalization seller’s permit.
              His first indoor marijuana “grow” was with three other members of the
collective in August 2009. Shortly afterward there were 10 members in the collective.
Prior to becoming members the individuals were required to sign membership contracts
drafted by Richlin.
              Defendant invested money into the various “grows.” He was not
attempting to and did not make any profit off the “grows.” The “grow” that resulted in
the marijuana seized in April 2010, was the result of indoor and outdoor “grows.” Those
“grows” belonged to everyone in the collective, but Steven Sonders and an individual
named John were the actual growers.
              Defendant described the intake procedure whereby an individual may join
the collective. Herbal Run’s Web page did not have a street address on it. Neither did its
business cards. To join the collective, individuals would call the telephone number on
the Web site or business card. A member of Herbal Run would then take down the
individual’s information, including name, address, identification number, and the
recommending physician’s name and telephone number. The recommendation would
then be confirmed with the recommending physician before an appointment was made for
the individual to come into the office. At the appointment, an Herbal Run member would



                                               5
review the bylaws with the individual and find out what the person could contribute to
the process. Individuals who refused to contribute were not permitted to join.
               In April 2010, Herbal Run had 70 to 75 patients. Defendant asked
members to donate either time or money toward the “grow.” When asked what activities
the members contributed, defendant stated: “Everybody would put together, if they can
help with the grow, if they had any experience with the grow, if they can just water the
plants or trim or make butter or cook cookies.” All the applicants were required to give
time to the collective, but those who could not physically contribute to the cultivation of
the plants donated money.
               Defendant said the three-ring binder seized by the police is a log of the
money donations made to Herbal Run. The log notes show whether the person making
the donation was from a delivery or from “a walk-in,” someone who called first and then
made an appointment. The reason prospective members had to make an appointment was
because a member needed to be present to process the application and members were not
always there. Individuals were not permitted entry without having first made an
appointment.
               Defendant trained members who handled new patients. He specifically
trained them to explain to an applicant the requirement of contributing time and effort.
Defendant said he was not present on March 23, 2010, when Sean and Hayward engaged
in a transaction. Defendant was visiting his grandmother in Iran. He added the two-page
document Hayward said he signed was “not [a] complete document.” Defendant said he
did not find the two-page document Hayward said he signed. Defendant retained all his
“patient” records. There was no record from March 23, 2010, and Sean never told
defendant about the transaction. Sean should not have permitted an individual who had
not gone through prescreening to enter.
               Defendant explained the prices on the dry erase board were for patients
who could not contribute their time because they were too sick and who would prefer to

                                              6
pay. The amount was based on the expenses claimed by the growers. Defendant does
not keep any money from monetary donations; that goes to the collective’s growers to
reimburse them for their costs. Defendant said he did not believe the growers were
making a profit and he never attempted to make a profit.
             Other members of Herbal Run testified about the requirements for
obtaining medical marijuana from Herbal Run. Each testified to donating time or
experience in exchange for medical marijuana.
                                              II
                                       DISCUSSION
             Prior to the second trial, the prosecutor brought an Evidence Code section
402 motion to preclude defendant from asserting a defense under the MMPA. The
defendant argued he did nothing illegal because he was a qualified patient whose
physician recommended his use of medical marijuana, he formed a medical marijuana
collective, Herbal Run, and operated the collective in compliance with the MMPA and
the Attorney General’s Guidelines. Specifically, he claimed his actions were protected
under section 11362.775 of the MMPA and that section 11362.775 does not preclude the
exchange of money for medical marijuana when the money is used to cover the costs of
cultivation. The district attorney argued sales are not protected by the MMPA. He also
asserted the MMPA did not apply because Herbal Run was a for profit organization. The
court held defendant was not entitled to the benefit of the defense because there was
evidence he charged for the marijuana. Consequently, defendant was precluded from
presenting evidence on the defense and the jury was not instructed on it. Defendant
claims the court prejudicially erred. We agree.


A. Standard of Review
             “‘It is well settled that a defendant has a right to have the trial court . . .
give a jury instruction on any affirmative defense for which the record contains

                                              7
substantial evidence [citation]—evidence sufficient for a reasonable jury to find in favor
of the defendant [citation]—unless the defense is inconsistent with the defendant’s theory
of the case [citation]. In determining whether the evidence is sufficient to warrant a jury
instruction, the trial court does not determine the credibility of the defense evidence, but
only whether “there was evidence which, if believed by the jury, was sufficient to raise a
reasonable doubt . . . .” [Citations.]’ [Citations.]” (People v. Mentch (2008) 45 Cal.4th
274, 288.) Specifically in cases raising the issue of whether a defendant is entitled to a
defense under the Compassionate Use Act (CUA) or MMPA, the defenses “relate directly
to the nature of the defendant’s conduct as opposed to a collateral matters.” (People v.
Jackson (2012) 210 Cal.App.4th 525, 533.) Consequently, “those defenses only require
that a defendant raise a reasonable doubt as to whether the elements of the defenses have
been proven.” (Ibid.) When the trial court addresses this issue, it does not consider the
credibility of the witnesses. That issue is left to the jury to decide. (Ibid.; People v.
Villanueva (2008) 169 Cal.App.4th 41, 49.)


B. Background: The CUA, MMPA, and the Attorney General’s Guidelines
              In November 1996, the electorate enacted section 11362.5 as part of
Proposition 215. The CUA was enacted “[t]o ensure seriously ill Californians have the
right to obtain and use medical marijuana for medical purposes,” when their use of
medical marijuana has been recommended by a physician in the treatment for illness. (§
11362.5, subd. (b)(1)(A).) The electorate enacted the CUA to ensure such patients and
their primary caregivers2 are not subject to criminal prosecution for obtaining and using
marijuana for medical purposes. (§ 11362.5, subd. (b)(1)(B).) To that end, subdivision
(d) of section 11362.5, provides that section 11357 [prohibiting possession of marijuana]


              2The CUA defines a primary caregiver as “the individual designated by the
person exempted under this section who has consistently assumed responsibility for the
housing, health, and safety of that person.” (§ 11362.5, subd. (e).)

                                               8
and section 11358 [prohibiting cultivation of marijuana] do not apply to a primary
caregiver or a qualified patient. “Section 11357, relating to the possession of marijuana,
and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or
to a patient’s primary caregiver, 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).)
              In addition to assuring qualified patients have access to medical marijuana,
the CUA was intended “[t]o encourage the federal and state governments to implement a
plan to provide for the safe and affordable distribution of marijuana to all patients in
medical need of marijuana.” (§ 11362.5, subd. (b)(1)(C).) On the whole, “the [CUA] is a
narrowly drafted statute designed to allow a qualified patient and his or her primary
caregiver to possess and cultivate marijuana for the patient’s personal use despite the
penal laws that outlaw these two acts for all others.” (People v. Urziceanu (2005) 132
Cal.App.4th 747, 772-773.)
              While the CUA expressly refers to sections 11357 and 11358 (§ 11362.5,
subd. (d)), at least one court has found the CUA also provides, in appropriate cases, an
implied defense to a charge of transporting marijuana (§ 11360, subd. (a)). People v.
Trippet (1997) 56 Cal.App.4th 1532, involved an appeal from convictions for possession
of more than 28.5 grams of marijuana (§ 11357, subd. (c)) and transportation of
marijuana (§ 11360, subd. (a)) prior to Proposition 215’s passage and enactment of the
CUA (§ 11362.5). The defendant had attempted to use a medical necessity defense and
presented the testimony of her physician. With the Attorney General’s agreement, the
appellate court found the CUA could be applied retroactively. (People v. Trippet, supra,
56 Cal.App.4th at pp. 1544-1545.) More pertinent to the issue presented in the present
case, the court had to determine whether the CUA provided a possible defense to the
charge of transporting marijuana.



                                              9
              The appellate court noted the CUA provided a defense to two specific
sections pertaining to marijuana—section 11357 [possession of marijuana] and 11358
[cultivation of marijuana] (People v. Trippet, supra, 56 Cal.App.4th at pp. 1543-1544)—
and the CUA was not intended to make wholesale changes to the criminal law relating to
existing marijuana prohibitions (id. at p. 1546). That being said, the court noted a limited
defense to a charge of transporting marijuana necessarily exists under the CUA,
notwithstanding the fact that section 11362.5 does not list section 11360 as a statute that
does not apply to qualified patients and caregivers. The Attorney General conceded as
much. (People v. Trippet, supra, 56 Cal.App.4th at p. 1550.) “[T]he voters could not
have intended that a dying cancer patient’s ‘primary caregiver’ could be subject to
criminal sanctions for carrying otherwise legally cultivated and possessed marijuana
down a hallway to the patient’s room.” (Ibid.; see People v. Emmal (1998) 68
Cal.App.4th 1313, 1315 [transporation conviction upheld where drug was moved 20
feet]; see also People v. Ormiston (2003) 105 Cal.App.4th 676, 683 [transportation
conviction upheld where defendant walked while in possession of drug].)
              In 2003, the Legislature found qualified patients and their caregivers had
been prevented from obtaining the protections intended by the CUA (Stats. 2003, ch. 875,
§ 1, subd. (a)(2)), and responded by enacting the MMPA (§ 11362.7 et. seq.) which
became effective on January 1, 2004. The MMPA added “18 new code sections that
address the general subject matter covered by the CUA.” (People v. Kelly (2010) 47
Cal.4th 1008, 1014.) Included therein were sections providing for the issuance of
identification cards for qualified patients (§ 11362.71 — 11362.755), a section setting
forth the amount a marijuana that may be possessed by qualified patients (§ 11362.77), a
section listing places where the use of medical marijuana is prohibited (§ 11362.79), and
a section urging Regents of the University of California to create the California Medical
Marijuana Research Program (§ 11362.9). Relevant to the issue at hand, the MMPA also
permits qualified patients and their designated primary caregivers to join together “in

                                             10
order collectively or cooperatively to cultivate marijuana for medical purposes” without
being subject to “state criminal sanctions under Section 11357, 11358, 11359, 11360,
11366, 11366.5, or 11570.” (§ 11362.775.) The MMPA has expanded the scope of
protection beyond that initially provided by the CUA, which was limited to cultivation of
and possession of medical marijuana. (People v. Urziceanu, supra, 132 Cal.App.4th at p.
784.)
              In 2010, the Legislature added section 11362.768 to the MMPA. (Stats.
2010, ch. 603, § 1.) This section implicitly recognizes the lawfulness of a “marijuana
cooperative, collective, dispensary, operator, establishment or provider who possesses,
cultivates, or distributes medical marijuana pursuant to” the MMPA, but prohibits such
entities from operating “within a 600-foot radius of a school.” (§ 11362.768, subd. (b).)
“This section shall apply only to a medical marijuana cooperative, collective, dispensary,
operator, establishment, or provider that is authorized by law to possess, cultivate, or
distribute medical marijuana and that has a storefront or mobile retail outlet which
ordinarily requires a local business license.” (§ 11362.768, subd. (e).)
              In 2008, before the enactment of section 11362.768 and pursuant to the
requirement set forth in section 11362.81,3 the Attorney General issued Guidelines
concerning marijuana grown of medical use. (Cal. Atty. Gen., Guidelines for the
Security and Non-diversion of Marijuana Grown for Medical Use (Aug. 2008)
<http://ag.ca.gov/cms_attachments/press/pdfs/n1601_medicalmarijuanaguidelines.pdf>
[as of Aug. 15, 2014] (Guidelines).) The Guidelines noted the California State Board of
Equalization (BOE) filed a notice that it would issue seller’s permit to tax medical
marijuana transactions. Possession of a seller’s permit would not, however, permit
unlawful sales of marijuana. (Guidelines, § I.D., pp. 2-3) The BOE Special Notice


              3“[T]he Attorney General shall develop and adopt appropriate guidelines to
ensure the security and nondiversion of marijuana grown for medical use by patients
qualified under the Compassionate Use Act of 1996.” (§ 11362.81, subd. (d).)

                                             11
Information on Sales Tax and Registration for Medical Marijuana Sellers stated even
those who do not make a profit from selling medical marijuana, must pay taxes on the
sales. (BOE, Special Notice (June 2007), p. 2 <http://www.boe.ca.gov/news/pdf/173.
pdf> [as of Aug. 15, 2014].) The guidelines note medical marijuana cooperatives and
collectives are not authorized to make a profit from the sale or distribution of medical
marijuana. (Guidelines, § IV.B.1, p. 9.)
              The Guidelines also provide guidance to groups acting collectively or
cooperatively in “cultivating and distributing marijuana for medical purposes.”
(Guidelines, § IV.A., p. 8.) Cooperatives must file articles of incorporation and cannot be
organized to make a profit for themselves. (Guidelines, § IV.A.1, p. 8, citing Corp. Code,
§§ 12201, 12300, 12311, subd. (b).) The guidelines further state cooperatives should not
“sell” medical marijuana to “non-members.” (Guidelines, § IV.A.2, p. 8.) However, the
guidelines provide medical marijuana may be provided for free to qualified patients and
caregivers; and may be provided in exchange for services rendered, “[a]llocated based on
fees that are reasonably calculated to cover overhead costs and operating expenses,” or a
combination of services and fees. (Guidelines, § IV.B.6, p. 10, italics added.)


C. Defendant was Entitled to a Defense Under the MMPA.
              The prosecution relied primarily on People v. Mentch, supra, 45 Cal.4th
274, and People ex rel. Trutanich v. Joseph (2012) 204 Cal.App.4th 1512 for the
proposition that defendant was not entitled to a defense under the MMPA. In People v.
Mentch, the defendant was charged with cultivating marijuana (§ 11358) and possessing
marijuana for sale (§ 11359) among other charges not relevant here. He came to the
attention of law enforcement as the result of large deposits of over $2,000 in small bills
that reeked of marijuana. He deposited $10,750 in a two-month period. (People v.
Mentch, supra, 45 Cal.4th at p. 278.) When his residence was searched, police found 187



                                             12
marijuana plants in different stages of growth. Mentch admitted he sold marijuana, but
claimed to have only sold to five medical marijuana users. (Id. at pp. 278-279.)
              One medical marijuana user testified he gave Mentch $150 to $200 a month
for medical marijuana. Another testified she had a physician’s recommendation, she
obtained marijuana from Mentch every month, and paid $200 to $250 cash for an ounce
of marijuana. Mentch testified he opened Hemporium, a caregiving and consulting
business to give people safe access to medical marijuana. (People v. Mentch, supra, 45
Cal.4th at pp. 279-280.) He said he provided medical marijuana to five qualified patients
and he did not always charge them. He said the money he received was used to pay for
the cost of cultivating and distributing the medical marijuana. (Id. at p. 280.) A narcotics
investigator testified Mentch may have personally used some of the marijuana he grew,
but opined defendant’s operation was primarily run for profit. (Id. at p. 279.)
              The issue in People v. Mentch was whether defendant was entitled to an
instruction on the primary caregiver defense under the CUA. (People v. Mentch, supra,
45 Cal.4th at p. 288.) The charged offenses purportedly occurred prior to the effective
date of the MMPA. (Id. at p. 278.) After finding Mentch did not qualify for the primary
caregiver defense provided by the CUA in section 11362.5 because there was no
evidence he had “‘“consistently assumed responsibility for the housing, health, or safety
of [the patient]”’” as required by section 11362.5 (People v. Mentch, supra, 45 Cal.4th at
pp. 284-285)—an issue not presented here—the court concluded the defendant would not
have been entitled to a defense under section 11362.765 of the MMPA either. (People v.
Mentch, supra, 45 Cal.4th at pp. 291-292.)
              People v. Mentch is of limited value to our analysis. First, it involved the
application of section 11362.765, and whether Mentch qualified as a primary caregiver,
issues not present here. The applicable statute in the present matter is section 11362.775.
The conduct protected by section 11362.775 extends in appropriate cases to violations of
section 11360. Subdivision (a) of that section not only refers to transportation, but also

                                             13
the sale of marijuana. (§ 11360, subd. (a).) Second, Mentch was decided prior to the
Legislature’s enactment of section 11362.768 in 2010. That section prohibits medical
marijuana cooperatives, collectives, dispensaries, or establishments from operating within
600 feet of a school (§ 11362.768, subd. (b)) and applies to organizations or individuals
“authorized by law to . . . distribute medical marijuana and that [have] a storefront or
mobile retail outlet which ordinarily requires a business license” (§ 11362.768, subd. (e),
italics added). The Legislature therefore assumed a qualified patient or organization
could, in certain circumstances, charge for medical marijuana. Thus, the existence of
“retail” storefronts or outlets. Of course, the existence of such means of distributing
medical marijuana to qualified patients or primary caregivers does not mean a dispensary,
storefront, or mobile outlet may be run for profit or sell medical marijuana to those who
have not received a physician’s recommendation for use of medical marijuana. (See §
11362.765, subd. (a) [nothing in section authorizes the distribution of marijuana for
profit].)
              People ex rel. Trutanich v. Joseph, supra, 204 Cal.4th 1512, involved the
application of a city attorney for an injunction. Joseph operated a storefront business
known as Organica. A “confidential source” of the United States Drug Enforcment
Agency (DEA) entered Orangica and purchased marijuana for $100. Over a week later, a
DEA agent went into Orangica and paid $100 for marijuana. That same day, a search of
the business turned up over 100 pounds of marijuana, over 260 pounds of edible products
and beverages containing hashish oil, large amounts of hashish and hash oil, more than
three pounds of psilocybin, and over $16,000 in cash. The DEA also recovered records
demonstrating Organica had approximately 1,772 “patients.” (Id. at p. 1516.) Opposing
the injunction, Joseph argued Organica did not constitute a nuisance because his action
was authorized by the CUA and the MMPA. (Id. at p. 1521.)
              Like the decision in People v. Mentch, supra, 45 Cal.4th 274, the decision
in People ex rel. Trutanich v. Joseph, supra, 204 Cal.App.4th 1512, has limited

                                             14
application here. Without analysis, the court concluded “[n]either section 11362.775 nor
section 11362.765 immunizes the marijuana sales activity conducted at Orangica.
Section 11362.775 protects group activity ‘to cultivate marijuana for medical purposes.’
It does not cover dispensing or selling marijuana.” (People ex rel. Trutanich v. Joseph,
supra, 204 Cal.App.4th at p. 1523.) This statement does not appear to take into
consideration two facts. First, section 11362.775 specifically applies to alleged violations
of section 11360, the penal statute prohibiting the sale of marijuana. Second, as in
People v. Mentch, supra, 45 Cal.4th 274, the appellate court in People ex rel. Trutanich v.
Joseph did not consider the effect of section 11362.768, a Legislative enactment that
inherently recognizes the lawfulness of the disbursement of medical marijuana from
storefront or mobile retail outlets. (§ 11362.768, subd. (e).)
              More pertinent to the present case are the decisions in People v. Urziceanu,
supra, 132 Cal.App.4th 747, and People v. Jackson, supra, 210 Cal.App.4th 525. In
People v. Urziceanu, the defendant was convicted of conspiring to sell marijuana prior to
the enactment of the MMPA. The appellate court concluded the CUA did not provide a
defense to the conspiracy charge, but found (1) the MMPA could be applied retroactively
to the defendant’s matter and (2) the MMPA provided a potential defense to the charge.
(People v. Urziceanu, supra, 132 Cal.App.4th at pp. 758-759.)
              The Urziceanu court noted the MMPA was the Legislature’s initial
response to the CUA’s call to provide a plan “‘for the safe and affordable distribution of
marijuana to all patients in medical need of marijuana’” as set forth in section 11362.5,
subdivision (b)(1)(C). (People v. Urziceanu, supra, 132 Cal.App.4th at p. 769, italics
added.) Unlike the CUA, which limited its application to charges of possession of
marijuana (§ 11357) and cultivation of marijuana (§ 11358), section 11362.775, enacted
as part of the MMPA, specifically provided a defense to additional charges, including
possession of marijuana for purpose of sales (§ 11359), among other charges. One of the
other statutes specifically listed in section 11362.775 is section 11360. That section

                                             15
generally prohibits the transportation and sale of marijuana. (§ 11360, subd. (a).)
Notably, the effect of the MMPA generally, and section 11362.775 specifically,
“represents a dramatic change in the prohibitions on the use, distribution, and cultivation
of marijuana for” qualified patients and primary caregivers. (People v. Urziceanu, supra,
132 Cal.App.4th at p. 785.)
              The court further found section 11362.775’s “specific itemization of the
marijuana sales law indicates it contemplates the formation and operation of medicinal
marijuana cooperatives that would receive reimbursement for marijuana and the services
provided in conjunction with the provision of that marijuana.” (People v. Urziceanu,
supra, 132 Cal.App.4th at p. 785.) The court concluded the Legislature thereby
“exempted those qualifying patients and primary caregivers who collectively or
cooperatively cultivate marijuana for medical purposes from criminal sanctions for
possession for sale, transportation or furnishing marijuana, maintaining a location for
unlawfully selling, giving away, or using controlled substances, managing a location for
the storage, distribution of any controlled substance for sale, and the laws declaring the
use of property for these purposes a nuisance.” (Ibid.)
              That the Legislature intended such a result is further evidenced by its
subsequent enactment of section 11362.768. As noted above, this section implicitly
recognizes the lawfulness of a “marijuana cooperative, collective, dispensary, operator,
establishment or provider who possesses, cultivates, or distributes medical marijuana
pursuant to” the MMPA, and only prohibits such entities from operating “within a 600-
foot radius of a school.” (§ 11362.768, subd. (b).) If such activities by patients and
primary caregivers were unlawful altogether, there would be no need to enact a statute
prohibiting such entities only within 600 feet of a school.
              Like defendant, the defendant in People v. Jackson, supra, 210 Cal.App.4th
525, was charged with sale of marijuana, possession of marijuana for sale, and the
prosecutor sought to foreclose the defendant from asserting a defense under the MMPA.

                                             16
Jackson testified at the hearing on the prosecutor’s motion. He testified he and five other
individuals cultivated medical marijuana for the 1,600 other members of the cooperative,
and the cooperative did not generate profits for himself or the other growers. (Id. at p.
529.) Although the court found the collective was not operated for profit, it concluded
that based on the large size of the organization, Jackson could not establish the
organization was collectively cultivating medical marijuana within the meaning of the
MMPA, and denied him a MMPA defense. (Ibid.)
              The court found a defendant is entitled to a defense under the MMPA if he
or she raises but a reasonable doubt as to whether the defense applies. The MMPA
provides a defense when a defendant shows that members of the collective or
cooperative: “(1) are qualified patients who have been prescribed marijuana for
medicinal purposes, (2) collectively associate to cultivate marijuana, and (3) are not
engaged in a profit-making enterprise.” (People v. Jackson, supra, 210 Cal.App.4th at p.
529.)
              Important to the facts presented in the present case, the court stated the
MMPA does not require all the members of the collective or cooperative to actively
participate in the cultivation process and their contribution to the organization “may be
limited to financial support by way of marijuana purchases from the organization.”
(People v. Jackson, supra, 210 Cal.App.4th at pp. 529-530.) In the present case, there
was evidence defendant had a physician’s recommendation to use medical marijuana, he
started Herbal Run and set it up as a not for profit corporation, he acquired a sellers
license from the BOE, he did not make a profit on marijuana sold to qualified Herbal Run
patients, and the money provided in exchange for marijuana was given to the growers to
reimburse them for their costs. This evidence raised a reasonable doubt as to the
application of the defense. Defendant was therefore entitled to a defense under the
MMPA. Whether Herbal Run was operated for profit or not, would then be determined



                                             17
by the jury. (People v. Jackson, supra, 210 Cal.App.4th at p. 533; People v. Villanueva,
supra, 169 Ca.App.4th at p. 49.)
              The prosecutor argued defendant was not entitled to the defense because the
MMPA did not legalize the sale of medical marijuana. He asserted that while it may be
lawful for a qualified patient unable to take part in the actual tending to the plants, or to
devote time and effort on behalf of Herbal Run, to support the organization strictly
through monetary contributions, the prosecutor argued any monetary contribution could
not be contemporaneous with an exchange of marijuana. According to the prosecutor,
such an individual would have to make his or her monetary contribution prior to the
planting of the marijuana the patient would eventually be given.
              The MMPA does not impose this limitation on qualified patients. First, the
purpose of the MMPA is to ensure the promise of the CUA is fulfilled and qualified
patients have safe access to affordable medical marijuana. We do not think the
Legislature intended a seriously ill individual whose physician has recommended use of
medical marijuana, and who is physically or otherwise unable to participate in the acts
involved in cultivating medical marijuana, cannot simply pay money to his or her
collective in exchange for the recommended medicine. It would be cruel for those whose
need for medical marijuana is the most dire to require that they devote their limited
strength and efforts to the actual cultivation of the marijuana, and then wait months for it
to grow so they can use it, or to require that they make their monetary contribution and
then wait months for the marijuana to be planted, grown, and harvested before they may
lawfully be provided medical marijuana. Moreover, for some the cultivation and
processing would not be completed until it was too late to provide any relief. The
MMPA does not anticipate a patient who has received a physician’s recommendation
must thereafter wait months to lawfully acquire medical marijuana.
              Of course, the MMPA did not make lawful all sales of marijuana. The
defense it provides is limited to those qualified patients and primary caregivers who

                                              18
associate together in a collective or cooperative. (§ 11362.775.) Additionally, sales for
profit remain illegal. However, given the MMPA’s purpose, one provision in the MMPA
implicitly recognizes the legality of store front dispensaries, collectives or cooperatives (§
11362.768), and another provision specifically provides a defense to violation of sections
11360 (sale or transportation of marijuana) and 11359 (possession of marijuana for sale),
we conclude a member of a collective or cooperative may purchase medical marijuana
from the collective or cooperative so long as the sale is not for profit. The district
attorney’s limited interpretation of section 11362.775 defeats the stated purpose of the
MMPA to make access to medical marijuana easier for patients, and is contrary to a fair
reading of the section. Section 11362.775 was written to provide a defense to a charge of
selling marijuana in appropriate circumstances. Were this not the Legislature’s intent,
there would have been no need to list section 11360 or section 11366 [opening or
maintaining a place for the purpose of selling or giving away marijuana] as statutes to
which the defense applies.
              The court’s failure to permit the defense was prejudicial. (People v.
Watson (1956) 46 Cal.2d 818, 836.) When defendant was provided the defense in the
first trial, the jury was unable to reach a verdict on the possession of marijuana for sale
charge. When he was denied the defense in the second trial, the jury convicted him of
possessing marijuana for sale. The Attorney General relies on People v. Saddler (1979)
24 Cal.3d 671, 684, for the proposition that if the court erred in failing to instruct the jury
on the MMPA defense, the fact that the MMPA defense instruction was given in the first
case and that jury was unable to reach a verdict does not establish prejudice. That
reliance is misplaced.
              Saddler involved an instruction to the effect that when a defendant testifies,
the jury may draw adverse inferences from the defendant’s failure to explain or deny
evidence against him. (People v. Saddler, supra, 24 Cal.3d at p. 677.) While the
instruction was not constitutionally improper, our Supreme Court found the evidence did

                                              19
not support giving the instruction in that case. (Id. at p. 675.) Here, on the other hand,
the error consisted of completely denying defendant not only a defense, but the defense
he was relying upon. If the jury accepted the defendant’s version of the facts and it had
been instructed regarding the MMPA defense, “it is reasonably probable that a result
more favorable to” defendant would have occurred. (People v. Watson, supra, 46 Cal.2d
at p. 836.)
                                             III
                                      DISPOSITION
              The judgment is reversed and the matter is remanded.




                                                   MOORE, ACTING P. J.

WE CONCUR:



ARONSON, J.



IKOLA, J.




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