Filed 7/30/13 P. v. Pickens CA6
                       NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.




               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       SIXTH APPELLATE DISTRICT



THE PEOPLE,                                                          H037756
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. CC806493)

                  v.

CARL GLEN PICKENS,

         Defendant and Appellant.



         Defendant Carl Glen Pickens was convicted of drug-related offenses. He claims
that a search warrant was defective and was inadequately reviewed by the magistrate who
issued it, that he received ineffective assistance of counsel, and, in substance, that his
marijuana cultivating was authorized by state law.
         We find no reversible procedural errors or ineffective assistance of counsel and
will affirm the judgment.
                                 PROCEDURAL HISTORY AND FACTS
         After a bench trial, the trial court convicted defendant of growing marijuana
(Health & Saf. Code, § 11358) and possessing psilocybin mushrooms (see id., § 11377,
subd. (a)). He was sentenced to two years’ formal probation, one condition of which was
to serve a year in jail.
       The prosecution theorized that defendant was engaged in marijuana cultivation
beyond a quantity needed for medical reasons that might be authorized under state law.
The defense contended that defendant was growing marijuana for his personal medical
use in compliance with state law.
       According to a police officer’s search warrant affidavit, an investigation of
defendant was triggered by a third party’s complaint that defendant was growing
marijuana at his house. The officer, according to his affidavit, visited a neighbor’s
house—it is not clear that the neighbor was the complainant, but the neighbor authorized
the officer to come on the premises—and from that vantage point the officer could smell
an odor of marijuana emanating from a structure attached to defendant’s bedroom. The
officer obtained a search warrant.
       The officer testified at trial that 372 marijuana plants and a quantity of psilocybin
mushrooms were found at defendant’s house. Testifying as an expert, the officer offered
opinions that defendant was growing a marijuana crop resulting in a 95-pound marijuana
yield that could be generated three or four times a year, with an annual sales value of
approximately one million dollars. Only a fraction of the likely yield was found in
defendant’s bedroom, suggesting that defendant was selling much of the marijuana he
was cultivating.
       On defendant’s behalf, a medical doctor testified that he had recommended in
2002 and 2004 that defendant ingest marijuana to combat migraine headaches, insomnia,
and psychological or neuropsychiatric problems. A teacher from the Cannabis Care
Institute testified as an expert in marijuana production methods and usage patterns. He
offered an opinion about the amount of usable cannabis defendant could have produced
annually. Based on “the space and light available in this garden, [defendant] could have
produced between 1.8 and 3.5 pounds of . . . usable cannabis” per harvest, for a
maximum possible annual output of more than 11 pounds, assuming three harvests.



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                                        DISCUSSION
       I.     Challenges to the Validity of the Search Warrant
       Defendant claims that the affidavit for the search warrant was defectively written
and that the magistrate must have failed to notice this defect before issuing the warrant.
Specifically, defendant claims that the affidavit has an odd sentence construction and
failed to describe the place to be searched with the requisite particularity.
       The affidavit averred “that I do believe, that there is now located at YOU ARE
THEREFORE COMMANDED, in the daytime, to make search of SUNBERRY
DRIVE, CAMPBELL, SANTA CLARA COUNTY, CALIFORNIA, which premises
consist of: a single story residence on the east side of Sunberry Drive. . . . The residence
is off-white stucco, with a dark brown trim around the windows, rain gutters, and garage.
White numbers 416 are affixed to the south side of the garage on the trim around the
garage, the numbers 416 are also painted on the curb in front of the residence . . . . The
front yard of the residence is contained within a metal chain link fence approximately
three feet in height around the perimeter. A large makeshift outbuilding can be seen from
the front of the residence on the south side yard of the residence . . . .”
       The affidavit further averred, six pages later: “I received a tip from a concerned
citizen who wished to remain anonymous that the resident at 416 Sunberry Drive is
cultivating marijuana in a makeshift outbuilding on the South side of the residence. From
a position [struck out: I legally had the right to be in,] [handwritten: adjacent to a Private
Yard in which the owner gave me consent to be, [initials]] I observed a large makeshift
outbuilding on the South side of the residence. . . . The outbuilding had a large vent . . . .
I smelled the odor of fresh marijuana near this exhaust vent. The concerned citizen
advised that they commonly see bright lights coming from inside the building during all
hours of the night.”
       Based on the affidavit, the magistrate issued a warrant ordering in relevant part:
“YOU ARE THEREFORE COMMANDED, in the daytime, to make search of 416

                                               3
SUNBERRY DRIVE, CAMPBELL, SANTA CLARA COUNTY, CALIFORNIA,
which premises consist of: a single story resident on the east side of Sunberry Drive.”
         The Fourth Amendment to the United States Constitution requires that a search
warrant “particularly describ[e] the place to be searched.” Drafting errors in the
description, however, may be tolerated in certain circumstances. “Whether the
description was sufficient is a question of law, which a reviewing court decides
independently.” (People v. Amador (2000) 24 Cal.4th 387, 392.) We find no reversible
error.
         “ ‘Where one part of the description of the premises to be searched is inaccurate,
but the description has other parts which identify the place to be searched with
particularity, searches pursuant to such warrants have been routinely upheld.’ ” (Id. at
p. 392.) In this case, the officer evidently invoked the paste function in a word-
processing program with the cursor in the wrong place. But the paragraph as a whole,
and the other part of the affidavit quoted above, made clear that the premises to be
searched were 416 Sunberry Drive, defendant’s residence. The magistrate was able to
determine this and the search warrant ordered a search at that address. Defendant’s
claims fail.
         II.    Scope and Magnitude of Marijuana Cultivation
         Defendant next contends that the possession of marijuana at his home, without
more, could not provide probable cause to justify a search, inasmuch as he might be
cultivating it for medical reasons that have been legitimized under state law.
         It remains, however, a crime in California to possess marijuana. (Health & Saf.
Code, § 11357.) Medical justification is instead a defense that can be asserted under
certain circumstances (People v. Mower (2002) 28 Cal.4th 457, 470), and “the burden of
proving the foundational elements for a medical marijuana defense rests with the
defendant.” (City of Garden Grove v. Superior Court (2007) 157 Cal.App.4th 355, 373.)
Here, the trial court, in announcing its judgment, stated that defendant’s operation

                                               4
involved quantities of marijuana “beyond that which is recognized as compassionate use
under the Compassionate Use Act as a reasonable amount of marijuana.” Substantial
evidence supports that conclusion; in other words, a “rational trier of fact could have
found the essential elements of the crime proven beyond a reasonable doubt.” (People v.
Gonzalez (2012) 54 Cal.4th 643, 653.) Therefore, defendant’s claim fails.
       III.   Denial of New Trial Motion
       Next, defendant claims that the trial court erred in denying his new-trial motion
(Pen. Code, § 1181). The motion was based on an assertion that counsel who represented
defendant at the outset of the proceedings, and who was later replaced, rendered
ineffective assistance.
       Defendant rested his new-trial motion on underlying contentions that the “search
warrant . . . was unintelligible as drafted and presented to the Court[ ] and . . . lacked
probable cause for its issuance under California law.” He argued that the magistrate
could not have read the affidavit, at least not carefully; had the magistrate done so, he or
she would have ordered the officer to correct it. Moreover, he argued, there was no
probable cause to issue the warrant because probable cause requires more than the
opinion of an experienced narcotics law enforcement officer that drugs are likely to be
present. He also argued that the officer here executed an affidavit containing too many
generalities, and that a magistrate should not issue a warrant resting in part on an
averment that an officer smelled an illegal substance. Finally, he argued in his moving
papers and at the hearing on the motion that effective counsel would have made these
contentions in a timely manner, but prior counsel failed to do so.
       The trial court denied the motion. It stated at the close of the hearing, “there was
factually and legally enough probable cause from the search warrant process to allow the
officers to make the observations. And to ask a magistrate for intervention by way of a
search warrant . . . that has, in fact, targeted the exact address to search at 416 Sunberry
Drive. [¶] So as far as the court is concerned, there is no error that could be justiciable

                                               5
for [prior counsel] to pursue a motion to suppress. Therefore, in this challenge [prior
counsel] did not sink below accepted standards of practice and . . . [the] motion for new
trial is denied.”
       On appeal, defendant renews the argument that the affidavit was flawed and that
prior counsel should have pressed the point with the trial court. He also argues that
counsel was ineffective for failing to insist on a jury trial for him and that counsel
executed poor strategy or tactics at various points.
       Under the Sixth Amendment, a criminal defendant has the right to the effective
assistance of counsel. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) “The ultimate
purpose of this right is to protect the defendant’s fundamental right to a trial that is both
fair in its conduct and reliable in its result.” (Ibid.) A claim of ineffective assistance of
counsel in violation of the Sixth Amendment entails deficient performance under an
objective standard of professional reasonableness and prejudice under a test of reasonable
probability of an adverse effect on the outcome. (Strickland v. Washington (1984) 466
U.S. 668, 687-688, 694.)
       “ ‘ “Reviewing courts defer to counsel’s reasonable tactical decisions in examining
a claim of ineffective assistance of counsel [citation], and there is a ‘strong presumption
that counsel’s conduct falls within the wide range of reasonable professional assistance.’ ”
[Citation.] “[W]e accord great deference to counsel’s tactical decisions” [citation], and
we have explained that “courts should not second-guess reasonable, if difficult, tactical
decisions in the harsh light of hindsight” [citation]. “Tactical errors are generally not
deemed reversible, and counsel’s decisionmaking must be evaluated in the context of the
available facts.” [Citation.]’ ” (People v. Stanley (2006) 39 Cal.4th 913, 954.)
       As the foregoing quotation indicates, reviewing courts defer to reasonable tactical
and strategic decisions, not inexplicable actions resulting in an adverse outcome. But we
have already explained that the warrant affidavit was not so defective that a challenge to
it would have succeeded. Pursuing the issue would have been fruitless. “Representation

                                               6
does not become deficient for failing to make meritless objections.” (People v. Ochoa
(1998) 19 Cal.4th 353, 463.) It follows that counsel’s failure to pursue this question did
not render his performance deficient.
       As for counsel’s failure to seek a jury trial for defendant, defendant does not
identify any place in the record that discloses a reason for counsel’s decision in this
regard. “ ‘As a general rule, “The reviewing court is not required to make an
independent, unassisted study of the record in search of error or grounds to support the
judgment.” [Citation.] It is the duty of counsel to refer the reviewing court to the portion
of the record which supports appellant’s contentions on appeal.’ ” (People v. Wong
(2010) 186 Cal.App.4th 1433, 1446, fn. 9.) This state of affairs renders defendant’s claim
unavailing unless counsel’s action was both inexplicable and deleterious on its face,
because “[i]f the record on appeal sheds no light on why counsel acted or failed to act in
the manner challenged[,] . . . unless counsel was asked for an explanation and failed to
provide one, or unless there simply could be no satisfactory explanation, the claim on
appeal must be rejected, and the claim of ineffective assistance in such a case is more
appropriately decided in a habeas corpus proceeding.” (People v. Vines (2011) 51 Cal.4th
830, 876, internal quotation marks omitted.)
       Counsel’s action here was not inexplicable on its face. Counsel could, for
example, have noticed something about defendant’s personality or attitudes that would
make him unappealing to jurors (as opposed to a judge with more experience with crimes
and criminal defendants). Thus, defendant’s claim fails.
       IV.    Denial of New Trial Motion
       Defendant next contends that the trial court misapplied People v. Kelly (2010) 47
Cal.4th 1008 (Kelly), in finding that the amount of plants defendant cultivated exceeded
that which could be reasonably permitted under the Compassionate Use Act (CUA) of
1996 (Prop. 215, § 1, as approved by electors, Gen. Elec. (Nov. 5, 1996) adding Health &
Saf. Code, § 11362.5). The trial court considered Kelly and determined that the amount

                                               7
defendant cultivated was more than what could be reasonably related to his medical
needs. We conclude that the trial court was correct.
       In Kelly, the Court held that any limitation on the amount of medical marijuana
that may be possessed by a qualified patient under the CUA cannot be set by the
Legislature. (Kelly, supra, 47 Cal.4th at pp. 1012, 1043.) At the same time, however,
Kelly stated that the amount that may be possessed is a quantity reasonably related to the
patient’s current medical needs. (Id. at pp. 1013, 1049.)
       In stating the basis for its decision to convict defendant of illegal marijuana
cultivation (Health & Saf. Code, § 11358), the trial court here found that the “amount and
quantity . . . was substantial,” with “an extraordinary number of plants involved,” and
that defendant’s operation was therefore “beyond that which is recognized under the
Compassionate Use Act as a reasonable amount of marijuana.” These findings are
supported by substantial evidence. In other words, a “rational trier of fact could have
found the essential elements of the crime proven beyond a reasonable doubt.” (People v.
Gonzalez, supra, 54 Cal.4th at p. 653.) Defendant was growing a crop that could yield 95
pounds of marijuana and could do so three or four times a year, with a street value in the
range of $1 million. For this reason, defendant’s claim fails.
       V.     Cumulative Error
       Defendant titles his fifth claim, “the trial court committed prejudicial error by not
permitting appellant to suppress evidence or to augment the record.” In substance, he
repeats claims I through IV above and embellishes them with complaints about the
conduct of the reporting party and the police. We interpret this claim as a claim of
cumulative error.
       A claim of cumulative error is in essence a due process claim and is often
presented as such (see, e.g., People v. Rogers (2006) 39 Cal.4th 826, 911). “The ‘litmus
test’ for cumulative error ‘is whether defendant received due process and a fair trial.’ ”
(People v. Cuccia (2002) 97 Cal.App.4th 785, 795.)

                                              8
       We have found no error in claims I through IV above; thus, there is no error to
accumulate. In addition, there is no question that the trial was fair for purposes of the due
process guaranty.
       VI.     Claim of Abuse of the CUA in Santa Clara County for Forfeiture Gains
       Defendant’s sixth claim is a bill of particulars against the justice system in general
and people he believes have improperly persecuted him in particular. At no point in his
detailed recitation is there a discernable legal claim that this court can address.
Furthermore, the entire five and one-half pages of defendant’s discussion—which the
Attorney General accurately characterizes as a “rambling . . . gallimaufry”—is in
violation of the California Rules of Court governing appellate briefs because the brief
contains no citation to the record or to any legal authority. (Cal. Rules of Court, rule
8.204(a)(1)(B), (C).) An appellate court is not required to search the record in order to
discover support for the litigant’s position. (In re S.C. (2006) 138 Cal.App.4th 396, 406.)
A party’s failure to support its argument with appropriate citations to the record may have
its brief stricken and its argument deemed forfeited. (Miller v. Superior Court (2002) 101
Cal.App.4th 728, 743.) Likewise, an appellate court may treat as forfeited any legal
argument for which there is no citation of authorities for the point made. (People
v.Stanley (1995) 10 Cal.4th 764, 793.) We are not required to address undeveloped
claims or ones that are inadequately briefed. (People v. Miralrio (2008) 167 Cal.App.4th
448, 452, fn. 4.) Therefore, any claim of error in the last section of defendant’s opening
brief is forfeited.
       Notwithstanding defendant’s noncompliance with the Rules of Court, to the extent
that defendant attempts to assert that forfeiture is improper under state medical marijuana




                                              9
laws, the claim is unsuccessful.1 A California jurisdiction “no doubt has every right to
retain a defendant’s marijuana if it is pursuing a marijuana-related prosecution against
him, or if the defendant’s possession does not comport with the CUA. In those situations,
the law clearly contemplates the destruction of the subject marijuana.” (City of Garden
Grove v. Superior Court, supra, 157 Cal.App.4th at p. 388; see also Littlefield v. County
of Humboldt (Jun. 28, 2013, A135628) ___ Cal.App.4th ___ [2013 Cal. App. Lexis 589].)
                                       DISPOSITION
       The judgment is affirmed.



                                            _______________________________
                                                       Márquez, J.

WE CONCUR:




______________________________
 Rushing, P. J.




______________________________
 Grover, J.




       1 In the heading of the last section of his brief, defendant argues: California’s
CUA “is being thwarted in Santa Clara County by an improper federal-law-based
interpretation of search and seizure law in order to further an agenda of forfeiture . . . .”
(Capitalization and emphasis omitted.)



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