Filed 10/16/13



                                 CERTIFIED FOR PUBLICATION

                 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.

THOMAS ANTHONY SANDERCOCK,
JR., et al.,

     Defendants and Respondents.



                   Defendants Thomas Anthony Sandercock, Jr., Christopher Austin and Amy
Austin 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 that would allow the retail sale of marijuana. The People declared
they could not proceed under the instruction. No wonder. Neither the Compassionate
Use Act (CUA) nor the Medical Marijuana Program Act (MMPA) allows for the sale of
marijuana for profit. (§§ 11362.7 et seq. & 11362.5) The People sought to exclude any
defense under the CUA and the MMPA. The trial court entered judgments of dismissal
and the People appeal.




                   1
                       All statutory references are to the Health and Safety Code unless stated
otherwise.
              We reverse. The MMPA is not a defense to retail sales. Any money
received must be no more than a cooperative or collective member's proportionate share
of the actual cost of cultivating and distributing the marijuana.
                                            FACTS2
              In 2010, police officers worked with the San Luis Obispo County Narcotics
Task Force in an undercover investigation of marijuana delivery businesses. Detective
Amy Chastain obtained a medical marijuana recommendation under an assumed name.
She used an apartment in the city of San Luis Obispo for purposes of the investigation.
                              Hopeful Remedies - Steven Gordon
              On November 4, 2010, Chastain called Hopeful Remedies, a collective,
and arranged for delivery of marijuana to the apartment. Steven Gordon arrived and
identified himself as "Mike." He verified that Chastain had a physician's
recommendation for marijuana. He asked Chastain to sign a form stating she was part of
his collective. After she signed the form, he sold her one-eighth ounce of marijuana for
$50. Chastain made another one-eighth ounce purchase from Hopeful Remedies on
November 17, 2010. On December 15, 2010, Chastain purchased one-half ounce from
Hopeful Remedies for $80.
                       Open Access Foundation - Austin & Sandercock
              On November 4, 2010, Chastain called the Open Access Foundation and
requested "a marijuana delivery." Christopher Austin arrived at the apartment and
checked Chastain's driver license and medical marijuana recommendation. After
Chastain completed Open Access Foundation's forms, Austin sold her one-eighth ounce
of marijuana for $50. On November 18, 2010, Chastain purchased another one-eighth
ounce of marijuana for $40. Chastain promised to pay Austin the remaining $10 the next
time she saw him.




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

                                                2
                         West Coast Caregiving Consulting - Hosking
              On November 9, 2010, Detective Chastain arranged to purchase
marijuana from West Coast Caregiving and Consulting, an entity owned by David
and Valarie Hosking.
              Valarie Hosking arrived at Chastain's apartment and checked her
driver's license and marijuana recommendation. Hosking asked Chastain to sign a
document stating that the Hoskings are Chastain's caregivers. Hosking sold Chastain
one-fourth ounce of marijuana for $120. On November 18, 2010, David Hosking sold
Chastain one-fourth ounce of marijuana for $110.
                                       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."3
              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
              In November 1996, the voters approved Proposition 215, enacting the
CUA, now codified as section 11362.5. The purposes of the CUA are: to ensure that
seriously ill Californians have the right to obtain and use marijuana for medical purposes
where recommended by a physician; to ensure such patients and their caregivers are not
subject to criminal prosecution; and "[t]o encourage the federal and state governments to

              3
                 The instruction does not appear of record, but Sandercock and the Austins
do not dispute its wording. After oral argument they assert, for the first time in a
supplemental brief, that the record is insufficient for a consideration of the instruction.
Suffice it to say, their argument is not timely.

                                               3
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).)
              The CUA provides that "[s]ection 11357, relating to the possession of
marijuana, and [s]ection 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 2003, the Legislature enacted the MMPA (§ 11362.7 et seq.) to clarify
the CUA and add provisions that were not included in the CUA. Here defendants rely on
section 11362.775. That section 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 to
collectively or cooperatively cultivate marijuana for medical purposes, shall not solely on
the basis of that fact be subject to state criminal sanctions under [s]ection 11357, 11358,
11359, 11360, 11366, 11366.5, or 11570."
              It is a defendant's burden to produce evidence sufficient to raise a
reasonable doubt that his or her acts are protected under the MMPA. (People v. Mower
(2002) 28 Cal.4th 457, 477, 481.)
              Nothing in the CUA or the MMPA authorizes the retail sale of marijuana.
Had the Legislature intended to authorize retail sales, it could have done so. Instead, it
prohibited retail sales. Section 11362.765, subdivision (a) provides in part, "nor shall
anything in this section authorize any individual or group to cultivate or distribute
marijuana for profit." Thus not only must the group or organization be nonprofit, no
individual may benefit financially from the cultivation or distribution of marijuana.
              Section 11362.775 provides immunity only for patients and caregivers who
"associate . . . in order to collectively or cooperatively cultivate marijuana for medical
purposes . . . ." The Legislature did not intend such immunity to apply where the
purchaser simply signs a paper stating she is a member of the seller's collective or naming
the seller as her caregiver. Chastain's purchase does not establish she grew or processed

                                              4
the marijuana she purchased, nor that she had any connection with the collective other
than to buy its product. We acknowledge, however, the MMPA does not require the
patient or caregiver to actually participate in the cultivation. (See People v. Jackson
(2012) 210 Cal.App.4th 525, 530 [that collective had 1600 members, very few of them
who participated in the actual cultivation process, did not prevent defendant from
presenting MMPA defense].) Nor does the MMPA require any period of prior
association with the collective or cooperative.
              The defendants suggest that we look to the California Attorney General's
2008 Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical
Use (Guidelines) for help in interpreting the MMPA. The Guidelines provide permissible
methods for reimbursement to the cooperative or collective.
              Section IVB6 of the Guidelines, page 10, states: "Marijuana grown at a
collective or cooperative for medical purposes may be: a) [p]rovided free to qualified
patients and primary caregivers who are members of the collective or cooperative;
b) [p]rovided in exchange for services rendered to the entity; c) [a]llocated based on
fees that are reasonably calculated to cover overhead costs and operating expenses; or
d) [a]ny combination of the above." (Italics added.)
              When a member pays for marijuana, the defendant must show the member
paid no more than the member's proportionate share of the actual cost of cultivating and
distributing the marijuana, and that there was no profit for the collective, cooperative or
any individual. That the sales price is limited to the member's proportionate share of the
cost and that no person or entity profited from the sale, are crucial to show that the
purchaser was associated for the purpose of collectively cultivating marijuana. This is far
different then being associated for the purpose of collective cultivation and ordinary retail
sales.
              The instruction approved by the trial court contains no such limiting
factors. It simply provides that paying for marijuana may "in itself" constitute
associating for the purpose of collectively cultivating marijuana. The instruction does not
inform the jury of the law's ban on sales for profit and, in effect, allows any entity or

                                              5
person to make a profit with impunity. The law does not sanction sales for profit even
between members of the same collective who each have a physician's marijuana
recommendation. (§ 11362.775; see also People v. Solis (2013) 217 Cal.App.4th 51, 54
[defendant who admitted receiving $80,000 in personal income from marijuana collective
not entitled to MMPA instruction]; People v. Jackson, supra, 210 Cal.App.4th at p. 538
["there is little doubt the Legislature did not intend to authorize [MMPA] profit-making
enterprises"]; People v. Colvin (2012) 203 Cal.App.4th 1029, 1040-1041, quoting
Guidelines § IVB5 at p. 10 ["'[a]ny monetary reimbursement the members provide to the
collective or cooperative should only be the amount necessary to cover overhead costs
and operating expenses'"].)
             The judgment is reversed and the matter remanded for further proceedings.
             CERTIFIED FOR PUBLICATION.




                                         GILBERT, P. J.



We concur:


             PERREN, J.



             HOFFSTADT, 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.
