Filed 1/16/14 P. v. Standen CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F064896
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. CRF36866)
                   v.

JOSHUA MICHAEL STANDEN,                                                                  OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Tuolumne County. Eric L.
DuTemple, Judge.
         John L. Staley, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M.
Levers, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
          A jury convicted Joshua Michael Standen of cultivating marijuana (Health & Saf.
Code, § 11358)1 and possession of a billy club (Pen. Code, § 22210). He contends the
trial court improperly instructed the jury and abused its discretion when it denied his
motion to reduce the Penal Code violation to a misdemeanor. He also argues his
possession of the billy club was protected by the Second Amendment to the United States
Constitution. We disagree and affirm the judgment.
                         FACTUAL AND PROCEDURAL SUMMARY
          Tuolumne County Sheriff’s Department Detective Robert Steven Nikiforuk was
the prosecution’s only witness. On the day in question, Nikiforuk and two other officers
served a search warrant at Standen’s residence. Adrian Vasquez and Tara Romano also
lived at the residence. Vasquez and Standen took Nikiforuk to view nine marijuana
plants in the backyard. Standen stated they were growing 12 plants per person, perhaps
30 plants total.
          Nikiforuk and Standen next went inside the shed where Standen kept an indoor
cultivation site. Nikiforuk located 31 immature marijuana plants ranging in size from
two inches to four feet tall. Nikiforuk also found a jar in Standen’s room that appeared to
contain about 34 grams of marijuana. Nikiforuk found eight more marijuana plants in the
garage. Later, Nikiforuk found 43 more small marijuana plants in the shed in the early
stages of growth. The total number of plants found at the property was 91. Five mason
jars containing two-thirds of a pound of marijuana were found in Standen’s bedroom.
Some concentrated cannabis was found on a plate in the shed. Marijuana butter was
found in the freezer. A digital scale was found in Vasquez’s room. Bags that could be
used for packaging were found in the living room.



          1All   statutory references are to the Health and Safety Code unless otherwise
stated.



                                                 2.
         Standen, Vasquez, and Romano each appeared to have a valid marijuana
recommendation from a doctor. Standen stated the marijuana plants belonged to
Vasquez, Romano, and him. Standen also stated he would share his marijuana with other
friends who also had valid medical marijuana cards.
         Standen admitted he consumed up to five or six grams of marijuana a day during
the harvest period. On normal days he would consume one to 1.5 grams per day.
Standen admitted he attempted to sell some of his marijuana to collectives but had not
been successful. He also stated he intended to bury some of the marijuana and retrieve it
when the market was better. Finally, Standen admitted he had a billy club under the bed
in his bedroom.
         In Nikiforuk’s opinion, a typical marijuana cigarette contained from .5 grams to
1.0 grams of marijuana. The effect of one marijuana cigarette typically would last from
four to six hours. Nikiforuk opined the marijuana was possessed for the purpose of sale.
He based this opinion on the number of plants found at the residence, the amount of
marijuana used by Standen in a year, the potential yield from the plants, the act of
attempting to sell marijuana to the collectives, Standen’s admission he was going to bury
marijuana and sell it later in the year, and the scale and packaging material found in the
house.
         Standen testified he has had a “recommendation” since he was 20 years old,
referring to a medical marijuana recommendation. Initially, he purchased marijuana, but
he eventually learned how to grow his own. His first marijuana harvest occurred in 2011.
Standen claimed partial ownership in two of the marijuana plants that were growing
outdoors and full ownership in one-third of the other plants. He estimated that only 20
percent of the young plants in the shed would grow to maturity. Standen’s intention was
to grow the marijuana and place it in jars. He intended to use the marijuana for his
personal needs and not sell it. He admitted talking to two collectives but denied ever



                                              3.
trying to sell marijuana to either of them. He admitted providing some marijuana to
friends who had a prescription and could not afford to purchase any marijuana.
       The marijuana found in jars in Standen’s room recently had been harvested from
the outdoor plants. He intended to use this for his personal needs. He believed he would
not have enough marijuana from all of the plants to meet his personal needs. He talked
with Nikiforuk about what would happen if he had too much and stated he would bury
some and retrieve it when the value for him was high or when he needed it for personal
consumption.
       Standen claimed the billy club belonged to his grandfather, and he had received it
as a memento when his grandfather died. He intended to mount it in a frame but had not
gotten around to it. The billy club was used by his grandfather in the 1940’s when he
was a policeman.
       Standen stated he did not have access to the bedroom shared by Romano and
Vasquez, which had a lock on the door, nor did he know why Vasquez possessed the
digital scale.
       Standen was charged with cultivating marijuana (§ 11358), possession of
marijuana for sale (§ 11359), and possession of a deadly weapon (Pen. Code, § 22210).
The jury found him guilty of cultivating marijuana and possession of a deadly weapon,
but found him not guilty of possession of marijuana for sale. Imposition of the sentence
was suspended and Standen was placed on five years’ probation, including six months in
the county jail.
                                     DISCUSSION
CALCRIM No. 2370
       The relevant portion of section 11362.5, the Compassionate Use Act of 1996
(CUA), provides that a patient who has written approval of a physician and cultivates
marijuana for the patient’s personal medical purposes cannot be convicted of cultivating



                                            4.
marijuana, in violation of section 11358. (§ 11362.5, subd. (d).)2 Standen relied on this
section to claim his cultivation was lawful.
       The trial court instructed the jury with CALCRIM No. 2370 to provide the jury
with the law related to the CUA defense. The relevant portion of the instruction stated:

       “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 or approved 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 the burden, you must find the
       defendant not guilty.” (Italics added.)
       Standen argues this instruction erroneously stated the law because section
11362.5, subdivision (d) permits a defendant is his position to cultivate marijuana “for
the personal medical purposes of the patient,” while the instruction imposed the
requirement that the amount cultivated “must be reasonably related to the patient’s
current medical needs.”
       The phrase “reasonably related to the patient’s current medical needs” appears to
have originated in People v. Trippett (1997) 56 Cal.App.4th 1532, 1549 (Trippett), one of
the first cases to interpret the CUA. Trippett was arrested after officers found two pounds
of marijuana in her vehicle. The trial court precluded her from presenting a defense
based on medical necessity, concluding she could not establish the elements of the




       2Section 11362.5, subdivision (d) states in full: “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.”



                                               5.
defense. Trippett was convicted of possession of marijuana and transportation of
marijuana.
       The CUA was passed while the case was pending in the appellate court. The
parties briefed the effect the new law had on the case, and the appellate court discussed
the CUA extensively, including the history and arguments in support of and against the
proposition. The appellate court rejected Trippett’s argument that the CUA placed no
limits on the amount of marijuana a person may possess, so long as it was possessed for
the patient’s personal medical needs. “To hold as she effectively urges would be
tantamount to suggesting that the proposition’s drafters and proponents were cynically
trying to ‘put one over’ on the voters and that the latter were not perceptive enough to
discern as much.” (Trippett, supra, 56 Cal.App.4th at p. 1546.)
       After concluding the matter was to be remanded to the trial court to permit
Trippett the opportunity to present a CUA defense to the charges, the appellate court
confirmed that it was “not remotely suggesting that, even with a physician’s
‘recommendation or approval,’ a patient may possess an unlimited quantity of marijuana.
The ballot arguments of the proponents, some of which are quoted above, are simply
inconsistent with the proposition that either the patient or the primary caregiver may
accumulate indefinite quantities of the drug. The statute certainly does not mean, for
example, that a person who claims an occasional problem with arthritis pain may
stockpile 100 pounds of marijuana just in case it suddenly gets cold. The rule should be
that the quantity possessed by the patient or the primary caregiver, and the form and
manner in which it is possessed, should be reasonably related to the patient’s current
medical needs. What precisely are the ‘patient’s current medical needs’ must, of course,
remain a factual question to be determined by the trier of fact.” (Trippett, supra, 56
Cal.App.4th at p. 1549.)
       Other appellate courts that have considered the issue have agreed with this
statement in Trippett. (People v. Wayman (2010) 189 Cal.App.4th 215, 223

                                             6.
[transportation of marijuana must be reasonably related to patient’s medical needs];
People v. Windus (2008) 165 Cal.App.4th 634, 643 [possession of one and one-half
pounds of marijuana may fall within the CUA if defendant could prove amount was
reasonably related to current medical needs]; People v. Frazier (2005) 128 Cal.App.4th
807, 824-825 [rejecting challenge to reasonably related language in jury instruction].)
We have not found any published case, and the parties do not cite one, that reaches a
different conclusion.
       Not only have the appellate courts unanimously concurred with Trippett on this
issue, but the Supreme Court has also, although not holding so directly. The Supreme
Court has considered the CUA, and the related Medical Marijuana Program (MMP), in
three relevant cases. In People v. Mower (2002) 28 Cal.4th 457, the Supreme Court cited
Trippett with approval, although not addressing the “reasonably related” language. In
People v. Wright (2006) 40 Cal.4th 81 (Wright), however, this language was mentioned if
not directly addressed. Wright addressed the application of the MMP to cases in which a
CUA defense was proposed or offered. The original issue for which review was granted
was related to transportation of marijuana reasonably related to a CUA patient’s
reasonable medical needs. At the time there was a split of authority in the Courts of
Appeal whether the CUA provided a defense to transportation charges since, by its terms,
the defense was limited to cultivation and possession.
       While the case was pending in the Supreme Court, the MMP was passed, which
authorized transportation of marijuana in certain circumstances, rendering moot the
conflict in the Courts of Appeal. In a footnote, the Supreme Court stated, “As both sides
acknowledged at argument, however, Trippett’s test for whether the defense applies in a
particular case survived the enactment of the MMP and remains a useful analytic tool to
the extent it is consistent with the statute.” (Wright, supra, 40 Cal.4th at p. 92, fn. 7.)
The Trippett test referred to the discussion in Trippett when the appellate court concluded
that application of the CUA defense depended on whether the “‘quantity transported and

                                              7.
the method, timing and distance of the transportation are reasonably related to the
patient’s current medical needs.’” (Wright, at p. 92; Trippett, supra, 56 Cal.App.4th at
p. 1551.)
       People v. Kelly (2010) 47 Cal.4th 1008 addressed the issue of whether portions of
the MMP impermissibly amended portions of the CUA. The MMP was an attempt by the
Legislature to codify some of the uncertainty created by the CUA and the cases that
interpreted the CUA. The MMP did not directly amend the CUA, but “add[ed] 18 new
code sections that address[ed] the general subject matter covered by the CUA.” (Kelly, at
p. 1014.) The MMP established quantity limitations for possession and cultivation of
marijuana for medical uses and contained a safe harbor provision that authorized
possession of specific amounts of medical marijuana. (Kelly, at p. 1015.) Before
resolving the issues presented, the Supreme Court discussed the relevant differences
between the CUA and MMP:

       “As alluded to above and further explained below, subdivision (a) of
       section 11362.77, by its terms, does not confine its specific quantity
       limitations to those persons who voluntarily register with the program and
       obtain identification cards that protect them against arrest. It also restricts
       individuals who are entitled, under the CUA, to possess or cultivate any
       quantity of marijuana reasonably necessary for their current medical needs,
       thereby burdening a defense that might otherwise be advanced by persons
       protected by the CUA. Moreover, although subdivision (b) of section
       11362.77 allows possession of a quantity ‘consistent with the patient’s
       needs’ that is greater than the amount set out in subdivision (a), it affords
       this protection only if a physician so recommends—a qualification not
       found in the CUA.” (Kelly, at p. 1017, first italics added.)
       While the Supreme Court did not hold the CUA limited possession of marijuana to
the amount that reasonably was related to the patient’s current medical needs, we find
this comment compelling. Moreover, we agree with the appellate courts that have
addressed the issue and conclude that the CUA only permits possession or cultivation of
marijuana that is reasonably related to the patient’s current medical needs. Indeed,
without such a limitation, the limited purpose of the act would be violated by permitting

                                             8.
anyone who obtained a recommendation to stockpile unlimited amounts of marijuana
without fear of conviction. Accordingly, we conclude the jury here was properly
instructed.
Possession of the Billy Club
       The jury convicted Standen of violating Penal Code section 22210, possession of a
billy club. He admitted possessing the billy club but challenges the conviction on the
ground that the statute violates his Second Amendment right to bear arms. We reject his
argument on both procedural grounds and substantive grounds.
       Standen failed to raise this objection in the trial court. Hence, he has forfeited the
argument. (People v. Partida (2005) 37 Cal.4th 428, 433-435.)
       Even if we were we to consider the argument on the merits, we would reject it.
Standen primarily relies on District of Columbia v. Heller (2008) 554 U.S. 570 (Heller).
The issue in Heller was the District of Columbia’s total ban on handguns. The opinion
first interpreted the Second Amendment to guarantee the individual right to possess and
carry weapons in case of confrontation. (Heller, at p. 592.) The Second Amendment was
found applicable to all weapons that constitute bearable arms, even those that were not in
existence at the time the Constitution was written. (Heller, at p. 582.) Further, the
Supreme Court confirmed the right of every individual to bear arms for defensive
purposes. (Id. at pp. 583, 602.) This right was not interpreted to be without limitation,
however. (Id. at p. 595.)

              “From Blackstone through the 19th-century cases, commentators
       and courts routinely explained that the right was not a right to keep and
       carry any weapon whatsoever in any manner whatsoever and for whatever
       purpose. [Citations.] For example, the majority of the 19th-century courts
       to consider the question held that prohibitions on carrying concealed
       weapons were lawful under the Second Amendment or state analogues.
       [Citations]. Although we do not undertake an exhaustive historical analysis
       today of the full scope of the Second Amendment, nothing in our opinion
       should be taken to cast doubt on longstanding prohibitions on the
       possession of firearms by felons and the mentally ill, or laws forbidding the


                                              9.
       carrying of firearms in sensitive places such as schools and government
       buildings, or laws imposing conditions and qualifications on the
       commercial sale of arms.

               “We also recognize another important limitation on the right to keep
       and carry arms. [United States v.] Miller [(1939) 307 U.S. 174] said, as we
       have explained, that the sorts of weapons protected were those ‘in common
       use at the time.’ [Citation.] We think that limitation is fairly supported by
       the historical tradition of prohibiting the carrying of ‘dangerous and
       unusual weapons.’ [Citations.]” (Heller, supra, 554 U.S. at pp. 626-627,
       fn. omitted.)
       The opinion explained that Miller held “the Second Amendment does not protect
those weapons not typically possessed by law-abiding citizens for lawful purposes, such
as short-barreled shotguns.” (Heller, supra, 554 U.S. at p. 625.)
       The question, as we see it, is whether a billy club is a dangerous and unusual
weapon, which is not typically carried by law-abiding citizens and thus is not protected
by the Second Amendment.
       This issue recently was addressed in People v. Davis (2013) 214 Cal.App.4th
1322. Finding support in People v. Grubb (1966) 63 Cal.2d 614, 620-621 [held
legislative intent was to outlaw instruments ordinarily used for criminal and unlawful
purposes when interpreting predecessor to Pen. Code § 22210] and People v. Mulherin
(1934) 140 Cal.App. 212, 215 [purpose of predecessor statute was to outlaw weapons
ordinarily used for criminal and unlawful purposes], the appellate court concluded that
billy clubs ordinarily were used for criminal and unlawful purposes and thus were not
protected by the Second Amendment. (Davis, at p. 1333.) “In this day and age, as we
are all painfully aware, it is often a gun—not a billy, sap, or blackjack—that is the
weapon of choice in most violent crimes. That fact, however, does not negate the
Legislature’s determination that the kind of weapons known as billies, blackjacks, and
saps are also instruments which are ‘“ordinarily used for criminal and unlawful
purposes”’ [citation] and defendant has not demonstrated otherwise.” (Id., fn. omitted.)




                                            10.
       We agree with this well-reasoned opinion and do not feel it necessary to repeat its
detailed analysis. Accordingly, we hold the statute does not violate the Second
Amendment.
Penal Code Section 17, Subdivison (b) Motion
       Violation of Penal Code section 22210 may be punished as either a felony or a
misdemeanor, a crime commonly known as a wobbler offense. (People v. Park (2013)
56 Cal.4th 782, 789 (Park).)
       Here, the crime was charged as a felony. Standen, however, moved to have the
conviction reduced to a misdemeanor pursuant to Penal Code section 17, subdivision (b).
The trial court denied the motion and deemed the conviction to be a felony. Standen
argues that trial court erred.
       A trial court has discretion to reduce a conviction to a misdemeanor. (Park, supra,
56 Cal.4th at p. 790.) “As a general matter, the court’s exercise of discretion under
[Penal Code] section 17(b) contemplates the imposition of misdemeanor punishment for
a wobbler ‘in those cases in which the rehabilitation of the convicted defendant either
does not require, or would be adversely affected by, incarceration in a state prison as a
felon.’ [Citation.] The court’s authority to exercise discretion in this regard is a long-
established component of California’s criminal law.” (Ibid.) We review the trial court’s
decision for an abuse of discretion. (People v. Superior Court (Alvarez) (1997) 14
Cal.4th 968, 976-977 (Alvarez).)
       The canons governing the trial court in the exercise of its discretion are well
established:

               “‘This discretion … is neither arbitrary nor capricious, but is an
       impartial discretion, guided and controlled by fixed legal principles, to be
       exercised in conformity with the spirit of the law, and in a manner to
       subserve and not to impede or defeat the ends of substantial justice.
       [Citations.]’ [Citation.] ‘Obviously the term is a broad and elastic one
       [citation] which we have equated with “the sound judgment of the court, to
       be exercised according to the rules of law.” [Citation.]’ [Citation.] Thus,


                                             11.
       ‘[t]he courts have never ascribed to judicial discretion a potential without
       restraint.’ [Citation.] ‘Discretion is compatible only with decisions
       “controlled by sound principles of law, … free from partiality, not swayed
       by sympathy or warped by prejudice .…” [Citation.]’ …

               “On appeal, two additional precepts operate: ‘The burden is on the
       party attacking the sentence to clearly show that the sentencing decision
       was irrational or arbitrary. [Citation.] In the absence of such a showing,
       the trial court is presumed to have acted to achieve legitimate sentencing
       objectives, and its discretionary determination to impose a particular
       sentence will not be set aside on review.’ [Citation.] Concomitantly, ‘[a]
       decision will not be reversed merely because reasonable people might
       disagree. “An appellate tribunal is neither authorized nor warranted in
       substituting its judgment for the judgment of the trial judge.” [Citations.]’
       [Citation.]” (Alvarez, supra, 14 Cal.4th at pp. 977-978.)
       The Supreme Court has concluded that in this situation relevant factors for trial
courts when exercising its discretion include “‘the nature and circumstances of the
offense, the defendant’s appreciation of and attitude toward the offense, or his traits of
character as evidenced by his behavior and demeanor at the trial.’ [Citations.] When
appropriate, judges should also consider the general objectives of sentencing such as
those set forth in California Rules of Court, rule 410.”3 (Alvarez, supra, 14 Cal.4th at
p. 978.)


       3CaliforniaRules of Court, former rule 410 has been renumbered and is now 4.410
and titled “General objectives of sentencing.” Rule 4.410 states:
       “(a) General objectives of sentencing include:
       “(1) Protecting society;
       “(2) Punishing the defendant;
       “(3) Encouraging the defendant to lead a law-abiding life in the future and
deterring him or her from future offenses;
       “(4) Deterring others from criminal conduct by demonstrating its consequences;
        “(5) Preventing the defendant from committing new crimes by isolating him or her
for the period of incarceration;
       “(6) Securing restitution for the victims of crime; and


                                             12.
       Standen asserts the trial court abused its discretion because he testified the billy
club was a memento from his grandfather; he did not know it was illegal; he never
intended to use it as a weapon; and it was in his bedroom when it was discovered by the
police. According to Standen, his possession of the billy club was harmless. He also
argues the factors found in California Rules of Court, rule 4.410 do not support the trial
court’s denial of his motion. We disagree.
       The two factors in California Rules of Court, rule 4.410 we find relevant are the
need to protect society and encouraging Standen to obey the law. As courts have pointed
out for over 70 years, one possesses a billy club generally for unlawful purposes. While
Standen professed no knowledge of the illegality of the billy club, and professed no intent
to use it to harm others, the trial court was not required to accept these representations.
After all, Standen was seeking to minimize his criminal culpability, thus creating doubt
as to his credibility. Moreover, the trial court could very well have concluded that
Standen possessed the billy club to defend his marijuana crop. The evidence at trial
indicated that other defensive measures to protect the crop were taken, such as a four-
foot by eight-foot piece of plywood with nails sticking out of it that was lying on the
ground and a two-inch by 12-inch board with nails sticking out of it that was placed on
the fence. It is easy to infer from these defensive efforts that the billy club was simply
another weapon used to defend the marijuana crop.
       The other relevant factor was the need to encourage Standen to obey the law. The
record, including the probation report that the trial court possessed at the time Standen


       “(7) Achieving uniformity in sentencing.

       “(b) Because in some instances these objectives may suggest inconsistent
dispositions, the sentencing judge must consider which objectives are of primary
importance in the particular case. The sentencing judge should be guided by statutory
statements of policy, the criteria in these rules, and the facts and circumstances of the
case.”


                                             13.
made his motion, indicated Standen had a prior embezzlement conviction for which he
was on probation at the time of this offense. The trial court also found Standen in
violation of his probation as a result of this conviction. Taking these circumstances into
consideration, the trial court reasonably could have inferred that Standen needed
additional encouragement to obey the law.
       The trial court’s ruling was neither arbitrary nor capricious. Accordingly, the trial
court did not abuse its discretion when it denied Standen’s motion.
                                     DISPOSITION
       The judgment is affirmed.

                                                                _____________________
                                                                   CORNELL, Acting P.J.


WE CONCUR:


 _____________________
GOMES, J.


 _____________________
HOFF, J.*




*       Judge of the Fresno Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.



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