Filed 3/14/16 P. v. Renaud CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                       (Amador)
                                                            ----




THE PEOPLE,                                                                                  C076777

                   Plaintiff and Respondent,                                    (Super. Ct. No. 13CR21138)

         v.

TIMMY RENAUD,

                   Defendant and Appellant.




         A jury found defendant, Timmy Renaud, guilty of cultivating marijuana (Health &
Saf. Code,1 § 11358). On appeal, defendant argues the trial court erred in failing to
instruct the jury, sua sponte, on the defense of cooperative cultivation. We affirm.




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

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                                      BACKGROUND
       Amador County narcotics enforcement officers conducted a warrant search of a
secluded and supposedly vacant lot in Sutter Creek. Neighbors had reported hearing
generators running at all hours and other suspicious activity.
       At the site, the officers found a marijuana growing operation with a 22-foot trailer,
a generator-powered water pump, a greenhouse with 15 marijuana plants, and around 40
plants drying under black plastic. The growing plants were estimated to eventually yield
about a pound of processed marijuana each. The drying plants were conservatively
estimated to yield a total of 35 pounds of processed marijuana. The officers also found
four gallon-sized bags of processed marijuana, a pay/owe ledger, hundreds of plastic
baggies of various sizes, and a folder with “dozens and dozens and dozens” of valid
Proposition 215 recommendations.
       The officers found three people at the site: defendant, a woman named Ashley,
and her boyfriend. The property’s owner (who was away) lived out-of-town and had
agreed to let them grow there. The property owner, Ashley, and defendant all had
Proposition 215 recommendation cards, and the property owner had told Ashley he had a
grower’s license.2 The owner had provided the many 215 recommendations, which were
for patients of his “cooperative type clinic.”
       Defendant told the officers that he was growing the marijuana for personal
consumption. He said his recommendation allowed him to have 10 pounds of marijuana.
When the officers challenged him on whether he could consume that much, defendant
said, “I smoke it with my buddies” and said he gives away the extra to his buddies. He
denied selling marijuana to collectives: “No. I’m growing it for myself.”




2      The police could not contact the owner, but Ashley testified the owner had told her
he had a recommendation card.

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        When asked which plants belonged to him, and which belonged to the owner, or
Ashley, defendant replied: “You know, we didn’t talk about it, we don’t know about it
yet, you know what I mean?” As to whether the owner received rent in exchange for
allowing the grow, defendant said: “he told us uh, he would let us grow and he would, he
gots [sic] like a shop or something down there, I don’t, I don’t know, I don’t even know
the story.”
        At trial, Ashley (who pled guilty to cultivating marijuana) testified for the
prosecution. She said three people were involved in the grow: herself, defendant, and
the property owner. She knew the property owner “through another friend [who] had
worked with us at the clinic.”3 The grow had been the property owner’s idea. Defendant
was brought in to help with the plant’s watering, caretaking, and harvesting. Ashley and
defendant would each receive 24 plants; the property owner would get the rest.
        Ashley testified that she had invested $25,000 into the grow. She would give what
she did not consume from her share to the clinic she worked at; the clinic would sell it,
and she would keep the money. She expected to earn, and keep, $15,000 from the sale:
“It helps me take care of my life. I have to pay -- I have a son I mean.”
        She, however, admitted to selling some marijuana directly to people with
recommendation cards. She would sell an eighth of an ounce for $60 or more. She also
did not think the grow was legal: “I kind of figured being out here wasn’t [legal] because
the way it was -- there was no clinics out here. There was no -- the hydroponics store is
far away and then we heard what had happened out here in the past and kind of put two
and two together, no, it was not legal out here.” Ashley believed the property owner had
“a lot of marijuana grows all over the place.” The owner, however, had told her he
thought the grow was okay; he said: “I know all the rules because I have an attorney.”




3   Defendant and Ashley were acquaintances from work.

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       At trial, defendant did not testify, nor did the defense offer witnesses. Defense
counsel argued defendant was never involved with Ashley and the property owner’s
illegal activity. Rather, defendant was involved solely to get marijuana for his own use,
of which he was allowed 10 pounds.
       The jury was instructed on the compassionate use defense. In relevant part:
“Possession or cultivation of marijuana is lawful if authorized by the Compassionate Use
Act. The Compassionate Use Act allows a person to possess or cultivate marijuana for
personal medical purposes or as the primary caregiver of a patient with a medical need
when a physician has recommended such use. The amount of marijuana possessed or
cultivated must be reasonably related to the patient’s current medical needs. The People
have the burden of proving beyond a reasonable doubt that the defendant was not
authorized to possess or cultivate marijuana for medical purposes. If the People have not
met this burden, you must find the defendant not guilty of this crime.”
       The jury found defendant guilty of cultivating marijuana (§ 11358), but not guilty
of possessing marijuana for sale (§ 11359).
                                      DISCUSSION
       Defendant now contends the trial court erred in failing to instruct the jury, sua
sponte, on the cooperative cultivation defense. Under that defense, qualified patients and
caregivers may collectively or cooperatively cultivate marijuana for medical purposes,
for the benefit of the members, but not for profit. He argues substantial evidence gave
rise to a sua sponte duty to instruct, in that there was ample evidence he had organized
with qualified persons to cultivate marijuana. We disagree.
                                                  I
                            The Medical Marijuana Program Act
       The Medical Marijuana Program Act recognizes a qualified right to collectively
cultivate medical marijuana: “[Q]ualified patients, persons with valid identification
cards, and the designated primary caregivers of qualified patients and persons with

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identification cards, who associate within the State of California in order collectively or
cooperatively to cultivate cannabis for medical purposes, shall not solely on the basis of
that fact be subject to state criminal sanctions under Section 11357, 11358, 11359, 11360,
11366, 11366.5, or 11570.” (§ 11362.775, subd. (a).)
       The collective cultivation defense requires that a defendant show 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 (2012)
210 Cal.App.4th 525, 529.) Not all members need participate in the cultivation process,
they may instead provide financial support by buying marijuana from the organization.
(Id. at pp. 529-530.)
       Beyond that, exact requirements are sparse. “Although section 11362.775 clearly
provides for collective cultivation, it does not specify what the Legislature meant by an
association of persons who engage in collective or cooperative cultivation for medical
purposes. For example, there is no mention of formality requirements, permissible
numbers of persons, acceptable financial arrangements, or distribution limitations. Not
surprisingly, therefore, over the past decade there has been considerable litigation as to
how the collective cultivation provision should be applied.” (People v. Orlosky (2015)
233 Cal.App.4th 257, 267-268.) Accordingly, in deciding whether a collective meets the
requirements of the Medical Marijuana Program Act, the model jury instructions provide
that the jury must consider various factors -- the size of the collective’s membership,
volume of purchases, level of member’s participation, whether the collective was
formally established as a nonprofit, presence of financial records, accountability of the
collective to its members, and evidence of profit or loss. (CALCRIM No. 3413.) It is not
instructed that any factors are dispositive.




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       Section 11362.81, subdivision (d), provides: “[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.” In August 2008, the California Attorney General issued Guidelines
for the Security and Non-diversion of Marijuana Grown for Medical Use
<http://ag.ca.gov/cms_attachments/press/pdfs/n1601_medicalmarijuanaguidelines.pdf>
(as of Mar. 11, 2016).) The document offers various guidelines for the operation of
collectives and cooperatives. For instance, collectives (unlike cooperatives) may not
need to organize as some form of business, but they should still not purchase or sell to
nonmembers but rather provide a means for facilitating or coordinating transactions
between members. (Id. at p. 8.) Although the guidelines are not binding, we give them
considerable weight. (Qualified Patients Assn. v. City of Anaheim (2010)
187 Cal.App.4th 734, 748.)
       A trial court must instruct, sua sponte, on a particular defense only if the defendant
appears to be relying on the defense, or there is substantial evidence supportive of the
defense and the defense is not inconsistent with the defendant’s theory of the case.
(People v. Martinez (2010) 47 Cal.4th 911, 953) “ ‘Substantial evidence is “evidence
sufficient ‘to deserve consideration by the jury,’ ” ’ ” it is not any evidence “ ‘ “ ‘no
matter how weak.’ ” ’ ” (People v. Wilson (2005) 36 Cal.4th 309, 331.)
                                                   II
        Substantial Evidence Did Not Support The Collective Cultivation Defense
       Here, there was no error in not instructing on the collective cultivation defense.
Defendant did not rely on that defense at trial, nor did substantial evidence support the
instruction.
       The evidence fell short of raising reasonable doubt that defendant was cultivating
marijuana for a lawfully operating collective. Indeed, neither defendant nor Ashley
appeared to have the slightest inkling they were part of a collective. Defendant

                                               6
maintained he was growing for his own consumption and sharing what he did not
consume “with his buddies.” When asked if the property owner received rent in
exchange for permitting the grow, defendant responded: “[the owner] told us uh, he
would let us grow and he would, he gots [sic] like a shop or something down there, I
don’t, I don’t know, I don’t even know the story.” Ashley, for her part, thought the grow
was illegal, explaining there were “no clinics out here,” and she subsequently pled guilty
to cultivating marijuana.
       Defendant argues on appeal that he organized with qualified patients to cultivate
marijuana. Defendant and Ashley had recommendation cards, and Ashley testified that
the owner had a grower’s license and ran a “cooperative type of clinic” where he served
“patients.” Defendant asserts “[t]here was also evidence that other persons were
involved, albeit not in the direct cultivation of the marijuana, and evidence they were also
qualified.” This statement is a reference to the fact that officers found a number of
recommendation cards and Ashley testified that the cards belonged to patients at the
owner’s clinic. But if this is the scope of defendant’s alleged cooperative, he lacks
sufficient evidence to prove it was lawful. When the jury is instructed on the collective
cultivation defense, “the jury must determine whether the collective [the defendant]
participates in is a profit-making enterprise and further that in resolving that question, it
should consider, in addition to other evidence of profit or loss, the size of the collective’s
membership, the volume of purchases from the collective and the members’ participation
in the operation and governance of the collective.” (People v. Jackson (2012)
Cal.App.4th 525, 530.) Here there is no evidence regarding any of these factors or
whether the alleged cooperative made a profit. Thus, substantial evidence did not give
rise to a duty to instruct the jury on the collective cultivation defense.




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                                   DISPOSITION
       The judgment is affirmed.



                                            /s/
                                            Robie, Acting P. J.



We concur:



/s/
Butz, J.



/s/
Renner, J.




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