Filed 2/7/14 P .v. Avina CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G047963

         v.                                                            (Super. Ct. No. 11HF0667)

GUILLERMO AVINA,                                                       OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, W.
Michael Hayes, Judge. Affirmed.
                   Law Offices of J. David Nick and J. David Nick for Defendant and
Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Tami
Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
                                          *                  *                  *
              Defendant Guillermo Avina represented himself at trial. The jury found
him guilty of possession of marijuana for sale (Health & Saf. Code, § 11359; all
undesignated section references are to the Health and Safety Code unless otherwise
stated), transportation of marijuana (§ 11360, subd. (a)), and two misdemeanors (Veh.
Code, § 23152, subds. (a) [driving under the influence of alcohol], (b) [driving with .08
or greater blood-alcohol content]). The court sentenced defendant to three years in
prison. On appeal, defendant challenges his felony convictions, contending the trial court
failed to instruct the jury pursuant to sections 11362.765, subdivision (c) and11362.775.
We affirm.
                                             I
                                         FACTS1
              On January 19, 2011, at approximately 2:51 a.m., Officer Shawn Preasmyer
stopped defendant’s vehicle in the area of MacArthur Boulevard and Birch for an unsafe
lane change. Upon contacting the driver, defendant, Preasmyer observed objective
symptoms of impairment, including a strong odor of an alcoholic beverage. According to
Preasmyer, the vehicle reeked of marijuana. He arrested defendant for driving under the
influence after defendant performed field sobriety tests and took a breath test.
              The officer searched the vehicle and found “some marijuana and a couple
vials of what appeared to be hash oil” near the center console. He also found what he
described as pay/owe sheets with “several hundred” entries. The sheets contained a
number of names and addresses, including addresses from outside California. Preasmyer
also found approximately one pound of marijuana and $1,580 inside the vehicle. He
opined the marijuana was possessed for sale and stated his opinion would not change if
defendant had a valid state-issued medical marijuana card.


              1  Because defendant only challenges his felony convictions, the facts
relating to his Vehicle Code violations are set forth summarily and only to the extent they
relate to his felony convictions.

                                             2
             Preasmyer remembered defendant saying he had a medical marijuana card
and was a caregiver for HIV and cancer patients. The parties stipulated defendant’s State
of California medical marijuana patient identification card was valid on January 19, 2011.
When he was booked into jail, defendant was asked his occupation and he answered,
“Director of the Slauson Patient Association.”
             Detective Elijah Hayward of the narcotic division of the Newport Beach
Police Department was given a hypothetical question that closely tracked the facts
relating to the marijuana, hash oil, money, and pay/owe sheets found in defendant’s
vehicle. Hayward opined the marijuana was possessed for sale. On cross-examination,
Hayward admitted a marijuana collective must keep records of transactions it makes.


Defense
             Richard Brumfield, Jr., has throat cancer and posttraumatic stress
syndrome. He has a physician’s recommendation to use medical marijuana, and holds a
State medical marijuana card. Brumfield formed Pacific Coast Wellness and Evolution
Center (PCW) in June 2009, and is its president. PCW is a mutual not for profit medical
marijuana primary caregiver association. Brumfield said that as president of PCW, he
made sure he and defendant were in compliance with state and federal law.
             Defendant has been Brumfield’s care provider since January 1, 2010.
Brumfield lived at defendant’s residence in Westminster, along with three other patients.
He lived there for two years without charge. Defendant provided him food, housing, took
him to the hospital when needed, and did not charge him for the marijuana defendant
supplied him. At no time did Brumfield ever see defendant “come home with excessive
money.”
             Brumfield recognized all of the addresses on what the detective termed
pay/owe sheets. He said defendant never sent medical marijuana to any of the addresses
and that one of the addresses belonged to Green Country Chiropractic Clinic. Brumfield

                                            3
said the Arizona address on one of the alleged pay/owe sheets belonged to a business, an
alternative cancer and treatment center and osteopathic clinic.
              On the night defendant was arrested, Brumfield was expecting defendant to
bring home a pound of marijuana. He was shown the marijuana seized that night and
said it was packaged in the same fashion as other marijuana brought to the residence.
Brumfield said smoking marijuana is not good for him because of his throat cancer, so he
uses a process to reduce it to a liquid form.
              Michael Delao and his girlfriend lived at defendant’s residence in
Westminster. Delao has been a medical marijuana card holder for 11 years. According
to Delao, defendant has been a caregiver for approximately nine or 10 years, was caring
for Richard Brumfield at the time of the arrest, and was the acting treasurer of PCW.
              Carolynn Ornelas is a member of PCW and lived at defendant’s residence
in Westminster, along with Brumfield. Defendant was her caregiver. She said defendant
never sold her marijuana and neither has she ever known him to be a marijuana dealer.
She said defendant’s intentions were to help his patients.
              Chezami Veto is defendant’s spouse. She said there were three patients
living at defendant’s residence at the time of his arrest. She confirmed defendant gave
Brumfield food and transported him to doctor appointments and the hospital. She said
she has never known defendant to be a drug dealer.
                                                II
                                       DISCUSSION
              In 1996, the electorate enacted section 11362.5, the Compassionate Use Act
(CUA). The CUA was enacted “[t]o ensure seriously ill Californians have the right to
obtain and use marijuana for medical purposes” when the use has been recommended by
a physician in the treatment for illness. (§ 11362.5, subd. (b)(1)(A).) The purpose of the
CUA was to insulate such patients and their primary caregivers from criminal
prosecution. (§ 11362.5, subd. (b)(1)(B).) To that end, subdivision (d) of section

                                                4
11362.5, provides that two provisions of the Health and Safety Code—section 11357
[prohibiting possession of marijuana] and section 11358 [prohibiting cultivation of
marijuana]—do not apply to patients who have a physician’s recommendation to use
medical marijuana and the patients’ primary care givers. (§ 11362.5, subd. (b)(1)(B).)
“[T]he [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.)
              Subsequently, when the Legislature found “qualified patients and
designated primary caregivers” had been prevented from obtaining the protections
afforded by the CUA, it enacted the Medical Marijuana Program (MMP) in 2003.
(§ 11362.7 et seq.; Stats. 2003, ch. 875, § 1(a)(2).) In order to remedy that situation and
to “[e]nhance the access to patients and caregivers to medical marijuana through
collective, cooperative cultivation projects” (Stats. 2003, ch. 875, § 1(b)(3)), the MMP
required the State Department of Health Services (§ 11362.7, subd. (b)) to “establish and
maintain a voluntary program for the issuance of identification cards to qualified patients
. . . .” (§ 11362.71, subd. (a)(1).) Subject to the requirements of the MMP (§ 11362.765,
subd. (a)), the Legislature provided immunity to “[a]ny individual who provides
assistance to a qualified patient or . . . designated primary caregiver” (§ 11362.765, subd.
(b)(3)) from “criminal liability under Section . . . 11359 [possession of marijuana for
sale] [ or] 11360 [transportation, sale, furnishing, or administering marijuana] . . . .”
(§ 11362.765, subd. (a).) In addition, the MMP permits qualified patients and their
designated primary caregivers to join together “in 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” based
solely on the collective or cooperative cultivation of “marijuana for medicinal purposes.”
(§ 11362.775, italics added.) The MMP also provides that a primary caregiver is entitled

                                               5
to receive reasonable compensation and payment for out-of-pocket expenses incurred in
providing his services, including supplying medical marijuana. (§ 11362.765,
subdivision (c) [“A primary caregiver who receives compensation for actual expenses,
including reasonable compensation incurred for services provided to an eligible qualified
patient or person with an identification card to enable that person to use marijuana under
this article, or for payment for out-of-pocket expenses incurred in providing those
services, or both, shall not, on the sole basis of that fact, be subject to prosecution or
punishment under Section 11359 or 11360”.].)
              Defendant was convicted of one count each of possession of marijuana for
sale (§ 11359) and transportation of marijuana (§ 11360, subd. (a)). The parties
stipulated defendant held a valid State of California medical marijuana patient
identification card on the date of his arrest. Additionally, defense evidence
demonstrating defendant was a qualified primary caregiver (§ 11362.5, subd. (e))2 was
unimpeached.
              In connection with the transportation of marijuana charge (§ 11360, subd.
(a)), the jury was instructed it could not convict defendant unless it found beyond a
reasonable doubt his possession of the marijuana was unlawful. (CALCRIM No. 2375.)
That instruction further informed the jury that possession authorized by the CUA is
lawful and a primary caregiver may transport marijuana for medical purposes to his
patients. The jury was not instructed, in connection with that charge or the charge of
possessing marijuana for sale (§ 11359), that a primary caregiver may lawfully receive
compensation for supplying a patient with medical marijuana, as provided by section
11362.765, subdivision (c). Neither was the jury instructed in the language of section


              2 “For the purposes of this section, ‘primary caregiver’ means the
individual designated by the person exempted under this section who has consistently
assumed responsibility for the housing, health, or safety of that person.” (§ 11362.5,
subd. (e).)

                                               6
11362.775, the provision exempting a primary caregiver from criminal liability for
violation of sections 11359 and 11360 based solely on participation in a collective or
cooperative to cultivate medical marijuana. Defendant contends the failure to so instruct
was prejudicial.
              “In criminal cases, even in the absence of a request, a trial court must
instruct on general principles of law relevant to the issues raised by the evidence and
necessary for the jury’s understanding of the case.” (People v. Martinez (2010) 47
Cal.4th 911, 953.) “That duty extends to ‘“instructions on the defendant’s theory of the
case, including instructions ‘as to defenses “‘that the defendant is relying on . . . , or if
there is substantial evidence supportive of such a defense and the defense is not
inconsistent with the defendant’s theory of the case.’”’”’ (People v. Gutierrez (2009) 45
Cal.4th 789, 824.)” (People v. Anderson (2011) 51 Cal.4th 989, 996.) We review de
novo whether the trial court erred in failing to instruct on a defense theory. (People v.
Manriquez (2005) 37 Cal.4th 547, 581.)
              Defendant’s defense was not inconsistent with the fact that a primary
caregiver may receive compensation for furnishing medical marijuana to his patients
(§ 11362.765, subd. (c)), and patients and primary caregivers may “collectively or
cooperatively . . . cultivate marijuana for medical purposes” without being subject to
“state criminal sanctions” under sections 11359 and 11360 solely on that basis.
(§ 11362.775.) If there was substantial evidence supporting instruction on these
defenses, the court was obligated to so instruct. We find, however, no such substantial
evidence.
              The prosecution introduced evidence of what its expert considered were
pay/owe sheets demonstrating defendant was selling marijuana. Although defendant
countered that evidence with Brumfield’s testimony to the effect that he recognized the
addresses on the alleged pay/owe sheets and defendant never sent medical marijuana to
any of the addresses, defendant did not introduce any evidence to the effect that he

                                               7
received compensation from any of his patients for providing them medical marijuana as
permitted by section 11362.765, subdivision (c). In fact, the only evidence he introduced
on this issue was to the contrary. Brumfield testified defendant did not charge him for
medical marijuana. And the only other defense witness to testify on this subject said
defendant never charged her for medical marijuana. Consequently, there was no
substantial evidence defendant received compensation for supplying patients with
medical marijuana and thus, he was not entitled to an instruction in the terms of section
11362.765, subdivision (c).
              Additionally, the jury was instructed that a caregiver could engage in
cultivation lawfully for purposes of providing medical marijuana to patients.
Accordingly, we find the court did not err in instructing the jury.
                                             III
                                      DISPOSITION
              The judgment is affirmed.




                                                   MOORE, J.

WE CONCUR:



O’LEARY, P. J.



RYLAARSDAM, J.




                                              8
