People v. Manson CA2/1 ( 2015 )

Filed 12/11/15 P. v. Manson CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B253254
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA059036)
v.
ARSEN MANSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Bernie
C. LaForteza, Judge. Affirmed in part, reversed in part and remanded with directions.
Alan Stern, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews and
Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.
___________________________
SUMMARY
Arsen Manson appeals from a judgment entered after a jury convicted him of four
counts of selling or offering to sell marijuana (Health & Saf. Code, § 11360, subd. (a)),
and one count each of possession of marijuana for sale (§ 11366), transportation of
marijuana (§ 11360, subd. (a)), maintaining a place for selling marijuana (§ 11366), and
misdemeanor battery (Pen. Code, § 242).
We affirm in part and reverse in part.
FACTS AND PROCEEDINGS BELOW
Appellant represented himself in propria persona at trial with the assistance of a
translator.
I. Prosecution Evidence
Appellant opened a marijuana dispensary called “Health Bud Pro” in Lancaster on
or about January 12 or 13, 2013. The dispensary operated seven days a week until March
14, 2013, when deputies from the Los Angeles Sheriff’s Department executed search and
arrest warrants.
A. Civilian Witnesses
Appellant opened the dispensary with the help of Olin Randall Hanson and Emily
Perez, Hanson’s girlfriend, who both had experience working in other medical marijuana
dispensaries and who wanted to become partners in or invest in a medical marijuana
dispensary. Hanson and Perez contributed $10,000 cash and six pounds of marijuana to
start the business with the understanding that Hanson would be “half partners” with
appellant, receiving half of the income from the dispensary, and Perez would receive
$10,000 per month.1
Hanson understood from his prior experience that dispensaries were nonprofit and
could only provide marijuana to people who joined the cooperative with verified
authorizations from doctors and filled out required paperwork. As members of the
1
Appellant never paid Hanson or Perez any money from the business.
2
cooperative, patients had certain rights and responsibilities and a board of directors ran
the cooperative. Perez understood that “verifying recommendations” was essential to
running a legal marijuana dispensary and accurate record keeping was critical.2
After it opened, the business caught on and grew. It operated on a cash basis and
Hanson or Perez counted the money in the cash register at the end of the day and turned
the money over to appellant who would put it in his pocket. Hanson estimated during the
first week on a slow day he counted $1,000 to $1,200 and on a good day between $3,000
and $4,000. Perez indicated she counted between $3,000 to $4,000.
When Perez expressed to appellant concern about following correct practices,
appellant complained that she was ruining his business and stated “everybody’s money is
good here.” Perez observed appellant selling marijuana at the dispensary without asking
for identification or “authorization.” Hanson also observed appellant selling to customers
who did not have proper authorization, telling Hanson that it was okay because he knew
the people. Hanson and Perez’s association with appellant’s dispensary ended on January
26, 2013, after appellant became angry with Perez and choked her in front of Hanson and
Erika Duran, a friend of Perez and Hanson.3
Duran was at the dispensary on two or three occasions but did not participate in
selling marijuana, although she did help write prices for marijuana on a dry-erase board.
She observed appellant sell marijuana usually without asking for identification from
customers, and when he did ask, he simply looked at it and hand it back without taking
steps to verify the information before completing the transaction.
Norma Wagers, a customer, testified that she showed appellant her paperwork the
first time she went to appellant’s dispensary in January or February 2013 and appellant
2
“Verifying” referred to calling a doctor’s office to confirm that a patient is
authorized to use medical marijuana and the authorization had not expired.
3
The jury convicted appellant of misdemeanor battery and found him not guilty of
criminal threats. On appeal, appellant does not challenge the misdemeanor battery
conviction.
3
made photocopies, but in 10 to 15 subsequent visits to the dispensary appellant4 never
asked for her identification or her medical marijuana recommendation and he did not
look her up in any paperwork or on the computer before making the sale.5 When Wagers
expressed concern to appellant about the lack of organization of the paperwork and the
legality of his operation, appellant told her not to worry about it and that “he had it taken
care of.” Nonetheless, in early March 2013, Wagers volunteered to try to organize
appellant’s paperwork and, while working on a laptop computer at the dispensary,
observed five to 10 transactions a day where customers were allowed to purchase
marijuana without proper paperwork. Wagers tried to tell customers who came in
without their recommendation or without their identification that they needed to come
back but appellant would let them make their purchase. Wagers received two grams of
marijuana total for her four days of work.
Jason Orta was a customer at appellant’s dispensary who later worked as security
outside the dispensary and inside selling marijuana in exchange for one gram of
marijuana a day.6 If a person did not have the proper paperwork, Orta would tell
appellant and appellant would let them in saying it was okay.
Alejandro Robles was a customer at appellant’s dispensary who also had owned
several retail businesses. Appellant asked Robles for help paying his state sales taxes but
Robles could not get an exact number for appellant’s sales because the records were
incomplete. Robles also served as a courier picking up marijuana purchased for
appellant’s dispensary from a store in Santa Clarita, but had no role in paying for the
marijuana as appellant made the arrangements. Robles estimated appellant’s dispensary
4
Wagers stated that she might have bought from someone other than appellant on
one occasion.
5
In contrast, Wagers described her experience at two other dispensaries; one
required her to show her recommendation and identification every time and the other kept
the recommendation on file and required her to show her identification.
6
Orta pled guilty to sales of marijuana in exchange for a probationary sentence
without any additional jail time in exchange for his promise to testify if subpoenaed.
4
had a profit margin of 10 to 15 percent, and possibly as high as 20 percent. Robles was
given marijuana for his work.
B. Law Enforcement Witnesses
On January 23, 2013, Los Angeles County Sheriff’s Deputy Mark Donnel and his
partner went to meet appellant at his dispensary to follow up on a written report from
appellant that he had been the victim of a robbery at gunpoint the previous evening.
After describing the robbery, appellant told Deputy Donnel that he might have paperwork
related to one of the robbers who might have been at the dispensary the day before the
robbery and retrieved a stack of copies of marijuana recommendations, but the copies
were not organized or annotated in any way and did not indicate who had been to the
dispensary the day before. When Deputy Donnel asked how much money the dispensary
made, appellant responded, “Give me a month and I’ll make you $10,000.”
Deputy Donnel told Sergeant Steven Owen, the investigating officer in this case,
that he was concerned about how appellant’s dispensary was being run and on February
20, 2013, Sergeant Owen went to the dispensary to speak with appellant about the
robberies and his business. When Sergeant Owen asked how much money a day
appellant was making selling marijuana, appellant said he was making $500 a day in
profit. Appellant showed Sergeant Owen the dispensary, including the sales room where
there was marijuana and a dry erase board with prices. Appellant told Sergeant Owen
that he would go to Los Angeles to buy marijuana and drove it in his van to the
dispensary and that at the end of the day he would take the unsold marijuana back to his
house.
The next day, February 21, 2013, Sergeant Owen again went to appellant’s
dispensary and after talking about the robbery, talked about how appellant’s dispensary
made money. Appellant stated that he bought marijuana from another dispensary,
transported it back to his dispensary, and marked up the price. For example, appellant
explained, if he purchased marijuana at $10 per gram, he would raise the price and sell it
for $12 per gram or if he paid $240 per ounce he would mark up the price and sell it for
$279 per ounce. Appellant indicated that he sold $1,000 worth of marijuana in a day and
5
$100 of that was pure profit. On a “good day,” appellant’s dispensary sold $3,000 to
$5,000 worth of marijuana. Appellant told Sergeant Owen that selling marijuana was
“big business” in terms of the “money you can make.” Appellant told Sergeant Owen
that the last time he had driven to Los Angeles to purchase marijuana was two days
before their conversation on February 21, 2013. Appellant replenished his marijuana
supply every couple days and also used “drivers” to transport the marijuana to his
dispensary. The more marijuana appellant bought, the “better deal” he would get on the
price.
That same day, February 21, 2013, Sergeant Owen had sheriff deputies participate
in traffic stops of people leaving appellant’s dispensary to see if they were in possession
of medical marijuana authorization cards and if they had purchased legally. Among the
customers stopped that day were Renae Campbell. Campbell, who received a marijuana
ticket for possession of less than an ounce of marijuana, did not have her medical
marijuana documentation with her because she just had to show her identification to
purchase from appellant. Campbell had purchased marijuana from appellant’s dispensary
around 10 times.
On February 26, 2013, Sergeant Owen again went to appellant’s dispensary and
spoke to appellant. Appellant seemed confused about what was necessary for a legal
marijuana cooperative, including whether a federal, state or county governing agency was
responsible for them. Appellant identified himself as the president of the dispensary co-
op, which had no other officers or members. Appellant said he had a lot of customers,
was making $150-160 in profit a day, and paying $90 in unspecified taxes for every
$1,000 he made. Appellant only talked about buying and transporting marijuana and did
not mention growing marijuana.
On March 7, 2013, Sergeant Owen had Deputy Larry Pico go to appellant’s
dispensary with cash and keys, but no identification. Pico went to the dispensary twice
that day. On the first visit, Pico was asked at the door if he had been to the dispensary
before and Pico answered yes and was allowed inside. Appellant and another person
were working at the sales counter, and after waiting for another customer to complete her
6
purchase, Pico bought $40 worth of one type of marijuana and $8 of another type without
being asked for identification. On the second visit about three hours later, appellant
asked Pico if he had been to the dispensary before, Pico said he had earlier that day and
wanted to buy more of what he had tried, Pico was allowed in and purchased one-half
ounce of marijuana from a worker for $100 after negotiating a $25 discount. Pico then
asked if he could buy a larger quantity of marijuana at a price below the $225 per ounce
listed price and appellant, who was present, responded that if Pico purchased a few
ounces he could pay $180 per ounce and could come back later that day to get it.
That same day, March 7, 2013, Sergeant Owen and his partner parked outside
appellant’s dispensary and conducted traffic stops of customers, including Daniel Kincaid
a passenger in one of the stopped vehicles. Kincaid, who was issued a citation, had just
purchased $50 worth of marijuana from appellant’s dispensary but did not have his
authorization on him that day and was not asked for identification or his authorization by
anyone at appellant’s dispensary. Kincaid had been asked for his documentation the first
time he went to appellant’s dispensary but did not have to fill out any paperwork.
On March 14, 2013, Sergeant Owen and a team of deputies executed search and
arrest warrants. Approximately three pounds of marijuana were found in a lockbox at the
dispensary and analyzed by police.
A marijuana dispensary expert testified that a legal marijuana collective in
California was a “jointly owned and operated entity working together towards the
common goal of cultivation and the distribution of marijuana to its members” and where
members reimbursed the collective for the convenience of someone helping provide the
medical marijuana. In a legal cooperative, marijuana was cultivated by members and it
cannot make a profit. It would be illegal to sell marijuana outside the membership group
even to someone who had a medical authorization and it would be illegal to buy
marijuana from one collective to sell it in another collective.
II. Defense Evidence
Appellant showed evidence that Kincaid had a marijuana recommendation.
Appellant testified that operating a marijuana business was a “new thing in California”
7
and no one knew much about it so when someone wants to open a marijuana business he
finds a knowledgeable attorney for consultation. Moreover, the California Attorney
General also provides rules for how to conduct the business properly. Appellant testified
as to the difference between a for-profit and a non-profit organization, stating a nonprofit
“can receive only donations, and they do not have to pay taxes from this amount. [¶] So
that means that the profit, the surplus, is increased. This constitute nine percent, and
every three months, you can spend this nine percent on—on the turnover, cash flow.”
Appellant conceded he was not “accurate” with the paperwork, saying papers were lost
before and after the robberies. Appellant also testified about the high crime rate in
Lancaster, hiring Orta, Robles and others and “training them to work correctly, without
violating the law.”
III. Conviction and Sentence
The jury convicted appellant of four counts of selling or offering to sell marijuana
(Health & Saf. Code, § 11360, subd. (a))—count 1 was for the period between January
14, 2013 to March 14, 2013; in count 7 was for the February 21, 2013 offer to sell to
Campbell; count 9 was for the March 7, 2013 offer to sell to Deputy Pico; and count 10,
was for the March 7, 2013 offer to sell to Deputy Pico. The jury also convicted appellant
in count 2 of possession of marijuana for sale (§ 11366), count 3 of transportation of
marijuana (§ 11360, subd. (a)), count 4 of maintaining a place for selling marijuana (§
11366), and count 6 of misdemeanor battery (Pen. Code, § 242).
The trial court initially sentenced appellant on November 22, 2013, to an
aggregate term of four years and six months in local county custody under Criminal
Justice Realignment Act of 2011 (Realignment Act) (Pen. Code, § 1170, subd. (h)).7 On
December 24, 2013, the trial court determined it had erroneously sentenced appellant
under the Realignment Act to local custody and resentenced appellant to the same
aggregate term to be served in state prison.
Appellant filed a notice of appeal.
7
All further statutory references are to the Penal Code unless otherwise indicated.
8
DISCUSSION
On appeal, appellant argues that his convictions of offers to sell marijuana under
counts 7, 9 and 10 are barred by section 954, the cumulative effect of four instructional
errors is prejudicial, he was incorrectly sentenced to state prison rather than local custody
under section 1170, subdivision (h), and the removal of standby counsel was in error. We
agree with appellant’s sentencing error claim. In all other respects, we affirm.
I. Claim of Section 954 Error
Appellant was charged and convicted under section Health and Safety Code
section 11360, subdivision (a) for sale, offer to sell, or transportation of marijuana in
count 1 during the period between January 14, 2013, and March 14, 2013, and also
convicted under section 11360, subdivision (a) in count 7 for the sale or offer to sell to
Campbell on February 21, 2013, in count 9 for the sale or offer to sell to Deputy Pico on
March 7, 2013, and in count 10 for a second sale or offer to sell to Deputy Pico on March
7, 2013. Appellant contends that under section 954 the trial “court should [have]
precluded the prosecutor from alleging individual sales charges (counts 7, 9 and 10) that
were necessarily included within . . . the general timeframe charge for the same offense
contained in count 1. In essence, the court should have informed the prosecutor that he
had two options, to either elect between the general timeframe charge or the necessarily
included individual sales charges and any other individual sales charges the prosecutor
could establish based on the evidence.” We do not believe section 954 requires such an
election.
Section 954 provides: “An accusatory pleading may charge two or more different
offenses connected together in their commission, or different statements of the same
offense or two or more different offenses of the same class of crimes or offenses, under
separate counts . . . . The prosecution is not required to elect between the different
offenses or counts set forth in the accusatory pleading, but the defendant may be
convicted of any number of the offenses charged, and each offense of which the
defendant is convicted must be stated in the verdict or the finding of the court . . . .” (§
954.) Thus, as the Supreme Court has stated, “[s]ection 954 generally permits multiple
9
conviction.”8 (People v. Reed (2006) 38 Cal. 4th 1224, 1227; see People v. Kirvin (2014)
231 Cal. App. 4th 1507, 1518 [collecting cases where courts have found section 954 to
allow multiple convictions for crimes that do not treat harm or damage as one of their
elements—even if the crimes are part of the same impulse, intention or plan—as long as
each conviction reflects a completed criminal act].) “A judicially created exception to
the general rule permitting multiple conviction ‘prohibits multiple convictions based on
necessarily included offenses.’” (People v. Reed, supra, 38 Cal.4th at p. 1227.) Thus, “if
a crime cannot be committed without also necessarily committing a lesser offense, the
latter is a lesser included offense within the former.” (Ibid.)
This case does not involve a lesser included offense.9 Rather, it involves multiple
acts or violations of the same statute. As appellant acknowledges, the cases he cites
reversing multiple convictions “involved a single occurrence.” (See, e.g., People v.
Coyle (2009) 178 Cal. App. 4th 209, 217 [in case involving three counts of murder based
on one victim, court noted the three courts charged a single offense, murder, on alternate
theories]; People v. Ryan (2006) 138 Cal. App. 4th 360, 369 [in case involving two counts
for each forged check, stating court had “found no case permitting multiple forgery
convictions, with respect to a single instrument”].) Here, appellant’s acts are not limited
to the three specific instances of offering to sell marijuana described in counts 7
(Campbell on Feb. 21, 2013), 9 (Pico on Mar. 7, 2013) and 10 (Pico a second time on
Mar. 7, 2013); appellant operated a marijuana dispensary during the general timeframe
alleged in count 1 (Jan. 14, 2013 & Mar. 14, 2013) and there was extensive evidence, as
summarized above, that throughout the operation of the dispensary, appellant was
8
The counterpart to section 954 is section 654 which prohibits multiple
punishments for the same act or omission. (§ 654; People v. Reed, supra, 38 Cal.4th at p.
1227.) “When section 954 permits multiple conviction, but section 654 prohibits
multiple punishment, the trial court must stay execution of sentence on the convictions
for which multiple punishment is prohibited.” (People v. Reed, supra, 38 Cal.4th at p.
1227.)
9
Although the jury was instructed on a lesser included offense of misdemeanor
simple possession of marijuana, it convicted appellant only of the greater crimes.
10
offering to sell and sold marijuana on numerous occasions to various individuals other
than on the dates and to the persons specified in counts 7, 9 and 10.10
II. Instructional Error Claims
Appellant makes four claims of instructional error. On appeal, we apply a de novo
standard of review for claims of instructional error. (People v. Manriquez (2005) 37
Cal. 4th 547, 581; People v. Alvarez (1996) 14 Cal. 4th 155, 217.)
A. Offering to Sell Instruction
Appellant’s first claim of instructional error is based on the trial court’s use of
CALCRIM No. 2351 as to counts 1, 7, 9 and 10. Specifically, appellant contends that
No. 2351 applies to an offer to sell rather than actual sales of marijuana and that the court
should have instructed the jury on actual sales under CALCRIM No. 2350. We find no
error.
The elements for selling marijuana are (1) defendant sold a controlled substance;
(2) defendant knew of its presence; (3) defendant knew of the substance’s nature or
character as a controlled substance; and (4) the controlled substance was marijuana.
(CALCRIM No. 2350.) The elements for offering to sell marijuana are (1) defendant
offered to sell marijuana, a controlled substance; and (2) when the defendant made the
offer, he intended to sell the controlled substance. (CALCRIM No. 2351.)
In general, “‘[a] party may not complain on appeal that an instruction correct in
law and responsive to the evidence was too general or incomplete unless the party has
requested appropriate clarifying or amplifying language.’” (People v. Hart (1999) 20
10
In arguing that section 954 prohibits a prosecutor from electing to charge a
defendant with counts based on specific instances as well as a general timeframe charge,
appellant notes that the jury was “not instructed that the specific instances of sales related
to counts 7, 9, and 10 could not also be used to convict appellant of the general timeframe
charge contained in count 1,” the jury might have concluded that because he was guilty of
the individual sales counts he was “necessarily also guilty of the separate timeframe
charge contained in count 1.” To the extent appellant raises an instructional error claim,
any alleged error was harmless as it is not reasonably probably that appellant would have
obtained a more favorable result absent the error in light of the extensive evidence
beyond the three specific instances charged in counts 7, 9, and 10. (See section II, post.)
11
Cal. 4th 546, 622; People v. Anderson (2007) 152 Cal. App. 4th 919, 927. [“Failure to
object to instructional error forfeits the issue on appeal unless the error affects
defendant’s substantial rights”].) Here, there is no dispute that CALCRIM No. 2351 is a
correct statement of the law. Appellant did not object to the trial court’s jury instruction
using CALCRIM No. 2351. Moreover, while the evidence may have also supported an
instruction charging appellant with completed sales, the evidence nonetheless supported
the jury’s finding as to each element of the offense of an offer to sell marijuana.
B. Transportation Instruction
As to count 3, the transportation charge, appellant contends the trial court erred in
again using CALCRIM No. 2351 applicable to offers to sell marijuana.
The record shows that the trial court included count 3 with counts 1, 7, 9 and 10 as
charging appellant with “offering to sell marijuana,” and did not otherwise instruct the
jury on count 3’s transportation charge. The Attorney General’s office concedes that it
“appears that the trial court failed to instruct the jury on transportation under Health and
Safety Code section 11360, subdivision (a),” but argues that the error was not prejudicial
because the evidence showed that appellant transported marijuana himself and also had
others transport marijuana for him.
Appellant appears to concede that none of the alleged instructional errors standing
alone would be deemed prejudicial under People v. Watson (1956) 46 Cal. 2d 818, 836
[the verdict must be upheld unless it appears “reasonably probable” the defendant would
have obtained a more favorable outcome had the error not occurred].) And as discussed
above and below, we find no error in the other instruction claims.
In any event, it does not appear reasonably probable that appellant would have
obtained a more favorable outcome absent the transportation instruction error. The
elements for transporting marijuana, are (1) defendant transported a controlled substance;
(2) defendant knew of its presence; (3) defendant knew of the substance’s nature or
character as a controlled substance; (4) the controlled substance was marijuana; and (5)
the marijuana possessed by defendant weighed more than 28.5 grams. (CALCRIM No.
2361.) Here, the jury also returned a guilty verdict on count 2 for possession for sale of
12
marijuana, finding, inter alia, elements (2) through (4)—that defendant knew of the
presence of the controlled substance, knew the substance’s nature or character as a
controlled substance, and the controlled substance was marijuana. (Compare CALCRIM
Nos. 2352 & 2361.) Moreover, the evidence included testimony from Sergeant Owen
that appellant stated that “every couple days” appellant bought marijuana from
dispensaries in Los Angeles and he or “his drivers” would bring the marijuana to his
dispensary by car and, at the end of each day, he would move any unsold marijuana to his
house. Appellant also told Sergeant Owen that the more marijuana he bought, the
cheaper price or “better deal” he would get, explaining if he paid $10 for a gram of
marijuana, he would sell it for $12 per gram and likewise that “he’ll pay $240 for an
ounce, he’ll mark up the price and sell it for $279 an ounce.” Under these circumstances,
it is not reasonably probable that appellant would have obtained a more favorable
outcome absent the trial court’s error.
C. Aiding and Abetting Instruction
Appellant next contends the trial court erred in failing to instruct the jury sua
sponte on aiding and abetting liability. We disagree.
“‘“[I]n criminal cases, even in the absence of a request, the trial court must instruct
on the general principles of law relevant to the issues raised by the evidence. [Citations.]
The general principles of law governing the case are those principles closely and openly
connected with the facts before the court, and which are necessary for the jury’s
understanding of the case.”’” (People v. Breverman (1998) 19 Cal. 4th 142, 154.) The
duty to instruct, sua sponte, on general principles closely and openly connected with the
facts before the court encompasses an obligation to instruct on all essential elements of
the charged offense where it relates to a material issue presented by the evidence.
(People v. Banks (1983) 147 Cal. App. 3d 360, 367.) Generally, “[a]ll persons concerned
in the commission of a crime, . . . whether they directly commit the act constituting the
offense, or aid and abet in its commission, . . . are principals in any crime so committed.”
(§ 31.) As our Supreme Court has explained, “[i]nstructions on aiding and abetting are
not required where ‘[t]he defendant was not tried as an aider and abettor, [and] there was
13
no evidence to support such a theory . . . .’” (People v. Young (2005) 34 Cal. 4th 1149,
1201, quoting People v. Sassounian (1986) 182 Cal. App. 3d 361, 404.) Here, appellant
was tried on the theory that he was a direct perpetrator of the crimes and no evidence was
presented suggesting that appellant merely acted as an aider and abettor. Thus, the trial
court did not err in not sua sponte instructing the jury on an aiding and abetting theory.
D. Medical Marijuana Program Act (MMPA) Defense Instruction
Finally, appellant argues that the trial court erred when it declined to give an
MMPA defense instruction. We find no error.
The MMPA bars individuals and any collective, cooperative, or other group from
transforming medical marijuana projects authorized under the MMPA into for-profit
enterprises. (Qualified Patients Assn. v. City of Anaheim (2010) 187 Cal. App. 4th 734,
746; Health & Saf. Code, § 11362.765, subd. (a) [“nothing in this section shall authorize .
. . any individual or group to cultivate or distribute marijuana for profit”].) “The law
does not sanction sales for profit even between members of the same collective who each
have a physician’s marijuana recommendation.” (People v. Sandercock (2013) 220
Cal. App. 4th 733, 739; see 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 (2012) 210 Cal. App. 4th 525, 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 [137 Cal. Rptr. 3d 856],
quoting Guidelines, § IV.B.5 at p. 10 [“‘[a]ny monetary reimbursement that members
provide to the collective or cooperative should only be an amount necessary to cover
overhead costs and operating expenses’”]; People v. Baniani (2014) 229 Cal. App. 4th 45,
61 [under MMPA, “sales for profit remain illegal”].)
Before trial, the court informed appellant that if he had “competent evidence as to
your defense that you conducted your activities within the Compassionate Use Act and
The Medical Marijuana Program Act,” then he was free to present the evidence subject to
14
the Evidence Code.11 Later, in discussing jury instructions, the court asked appellant if
he was requesting the instruction on the MMPA defense, appellant responded, “What
defense? Oh, no, I don’t want any defense.” Although appellant on appeal notes that his
claims of profit to Deputy Owen could be no more than braggadocio and may not have
factored in the expenses and costs of operating the dispensary, at trial appellant never
provided evidence to support these theories. Appellant’s testimony at trial did not
address his dispensary’s profit—or lack of profit—or the costs of its operation to dispute
the prosecution evidence that he was making a profit on the marijuana sales.12
Moreover, the MMPA also assumes that the collective or cooperate is cultivating
the marijuana, rather than purchasing marijuana from outsiders. (Health & Saf. Code, §
11362.775 [qualified individuals “who associate within the State of California in order
collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely
on the basis of that fact be subject to state criminal sanctions”].) Thus, the guidelines
issued by the Attorney General state that “The collective should not purchase marijuana
from, or sell to, non-members; instead, it should only provide a means for facilitating or
coordinating transactions between members.” (Cal. Atty. Gen., Guidelines for the
Security and Non-diversion of Marijuana Grown for Medical Use (Aug. 2008), § IV.A.2.,
p. 8.)13 “Cooperatives and collectives should acquire marijuana only from their
constituent members, because only marijuana grown by a qualified patient or his or her
11
The trial court also told appellant that he could not present hearsay evidence of
advice from his civil attorney about establishing his dispensary.
12
Rather, his testimony talked generally about the Attorney General’s Guidelines
and advice from an attorney on how to set up a nonprofit marijuana business, and
included the statements that a “nonprofit organization can only receive donations, and
they do not have to pay taxes from this amount” and that profit of 9 percent could be
spent every three months on “turnover, cash flow.”
13
These guidelines, while not binding, have been given considerable weight by the
courts when determining whether an operation qualifies as a collective under the MMPA.
(People v. Colvin, supra, 203 Cal.App.4th at p. 1040, fn. 11; Qualified Patients Assn. v.
City of Anaheim, supra, 187 Cal.App.4th at p. 748.)
15
primary caregiver may lawfully be transported by, or distributed to, other members of a
collective or cooperative (§§ 11362.765, 11362.775). The collective or cooperative may
then allocate it to other members of the group. Nothing allows marijuana to be purchased
from outside the collective or cooperative for distribution to its members. Instead, the
cycle should be a closed-circuit of marijuana cultivation and consumption with no
purchases or sales to or from non-members.” (Guidelines, § IV.B.4., p. 10, italics added.)
Appellant’s testimony did dispute the prosecution’s evidence that the dispensary was
buying marijuana from outside dispensaries to re-sell.
In light of the evidence at trial, we find no error in the trial court’s decision not to
instruct on the MMPA defense.14
III. Sentencing Error Claim
Appellant contends under the Realignment Act (§ 1170, subd. (h)), he should have
been sentenced to the county jail, and not state prison. Specifically, appellant contends
that the trial court erred in sentencing him to state prison based on the stayed sentence in
count 4. We agree.
A. Relevant Trial Court Proceedings
At the sentencing hearing on November 22, 2013, the trial court sentenced
appellant to the high term of four years on count 1, a consecutive term of six months on
count 6, and to the midterm on counts 2, 3, 4, 7, 9 and 10 but stayed those sentences
under section 654. The court ordered appellant to serve his aggregate term of four years
and six months in local county custody.
A month later, on December 24, 2013, the trial court held another hearing, stating
that it had found a mistake because the court had sentenced appellant on count 4
(maintaining a place for selling controlled substance) to the midterm of two years and
14
In a footnote, appellant argues that the trial court’s inclusion of an instruction on
an “MMPA defense” with respect to the lesser included charge of misdemeanor simple
possession of marijuana shows that the court’s decision not to give the MMPA defense as
to the greater charges was “illogical.” The court, however, did not give an MMPA
defense as to the simple possession charge; rather it gave an instruction that under the
Compassionate Use Act possession was lawful under certain circumstances.
16
Health and Safety Code section 11366 provides that it “‘shall be punished by
imprisonment in county jail for [a period] not more than one year or state prison” (Health
& Saf. Code, § 11366) and the Realignment Act did not apply to count 4. The trial court
noted that since it had imposed state prison on count 4, the court’s understanding was that
appellant was required to serve his sentence in state prison rather than local custody and
therefore changed appellant’s sentence.
B. Relevant Law
Section 654, subdivision (a) provides, “[a]n act or omission that is punishable in
different ways by different provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision.” Thus, as the Supreme Court held
“when a court determines that a conviction falls within the meaning of section 654, it is
necessary to impose sentence but to stay the execution of the duplicative sentence.”
(People v. Duff (2010) 50 Cal. 4th 787, 796; People v. Hernandez (2005) 134 Cal. App. 4th
1232, 1238-1239 [if section 654 applies, the proper procedure is to impose a concurrent
term and then stay it].) In other words, when section 654 applies, the trial court may
impose only one sentence. (See Neal v. State of California (1960) 55 Cal. 2d 11, 19.)
Here, the trial court stayed the concurrent sentences, including under count 4.
That sentence, under Health and Safety Code section 11366, was not subject to the
Realignment Act and required that appellant’s imprisonment be served in state prison
rather than local custody. Under section 669, subdivision (d), “When a court imposes a
concurrent term of imprisonment and imprisonment for one of the crimes is required to
be served in the state prison, the term for all crimes shall be served in the state prison,
even if the term for any other offense specifies imprisonment in a county jail pursuant to
subdivision (h) of Section 1170.” The parties dispute whether this section requires
appellant’s imprisonment—for four years on count 1, a Health and Safety Code section
11360, subdivision (a) offense that is subject to the Realignment Act—be served in state
prison, rather than county jail. We hold that it does not.
17
Section 669, subdivision (d) provides concurrent terms of imprisonment “shall be
served in the state prison.” In appellant’s case, the term for count 4 is stayed under
section 654 and will not be served unless the stay is removed. “‘It has long been
established that the imposition of concurrent sentences is precluded by section 654
[citations] because [under such a sentence] the defendant is deemed to be subjected to the
term of both sentences although they are served simultaneously.’” (People v. Duff,
supra, 50 Cal.4th at p. 796.) If section 654’s prohibition against duplicative punishment
is to be effectuated, we do not believe appellant can be subjected to the state prison
requirement stayed in count 4, in addition to the punishment imposed under count 1.
IV. Removal of Standby Counsel Claim
Finally, appellant contends that the trial court abused its discretion when it
relieved standby counsel for what he characterizes as a “minor transgression” prior to the
jury being instructed and that the error was prejudicial at sentencing and resentencing.
We find no abuse of discretion.
A. Relevant Trial Court Proceedings
Appellant elected to forgo the assistance of counsel and to represent himself at
trial in the trial court. Specifically at an October 7, 2013 hearing prior to trial, appellant
was represented by Gary Symonds who sought a continuance because he was scheduled
to start another trial; however, when the court asked appellant if he would agree to a
continuance, appellant stated he wanted to proceed in propria persona and did not want
Symonds to represent him. After a break to allow appellant to review and sign the
Faretta waiver with the assistance of a translator, the court conducted a colloquy during
which, inter alia, the court explained—and appellant stated he understood—that appellant
“would not be able to have co-counsel.” “So you can talk to whomever you want to on
your [own] time. But when you are before the court, you’ll be the only one sitting there
acting as you own attorney. You won’t be able to have any type of assistance other than
someone who substitutes in for all purposes sitting in with you. There’s no advisory
counsel allowed to remain at counsel table with you.” Symonds was present for the
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entire colloquy. Appellant’s Farretta motion was granted and Symonds was relieved as
counsel.15
On October 24, 2013, after the trial court excluded appellant’s evidence of his
retention of an attorney to help him establish his marijuana dispensary, reasoning that the
attorney’s statements were hearsay and the documents were irrelevant as certain
requirements must be met to qualify under the MMPA, Symonds—who was now serving
as appellant’s standby counsel—asked the court to be heard. The trial court responded,
“you’re stand-by counsel. You don’t have standing to be heard. So please have a seat.”
The next day, on October 25, 2013, during a discussion outside the presence of the
jury between the court, the prosecutor and appellant about jury instructions, Symonds
offered, “as stand-by counsel, maybe I can go over these and assist him.” The court
responded that it appreciated that Symonds was trying to be of assistance, “but, again,
you’re not representing the defendant. You’re merely here as stand-by. I’m not going to
order you not to talk to the defendant, but it’s entirely up to the defendant whether he
talks to you or not. But you really should not be giving him any advice.”
Later, in the afternoon on October 25, 2013, after the close of evidence, the trial
judge paused the proceedings and briefly left the courtroom to print the jury instructions
to read. When the judge returned to the bench, the prosecutor asked to speak to the court
outside the presence of the jury. After the jury exited, the prosecutor informed the court
that while the judge was out of the room, Symonds leaned over the bar and told the
interpreter to tell appellant to ask for special instructions. The prosecutor went on to say
that “stand-by counsel may have any conversation he chooses to have with [appellant].
15
On October 7, 2013, after Robert Nadler was appointed as standby counsel, the
court informed appellant that “you cannot consult in any way with Mr. Nadler. He
cannot give you any legal advice. He cannot answer any questions for you. He will sit
quiet throughout the proceedings until such time, if ever, you have elected to have him
appointed.” At an October 9, 2013 hearing on pre-trial motions, appellant asked to
“consult” with standby counsel, and the court responded, “You cannot. You waived your
right to have an attorney. [¶] Mr. Nadler is only here as stand-by counsel. Now, if you
want to relinquish your pro per status, . . . Mr. Nadler can step in and be your attorney.”
Appellant declined to do so.
19
However, he is not engaged by this court as an assisting counsel, and the People believe it
is inappropriate in his capacity as stand-by counsel to make such a verbal display with the
[appellant] through the interpreter while the court is away from the bench.”
The court responded, “Well, in light of that, Mr. Symonds, you’re relieved. Thank
you very much for your services.” The court then proceeded to rule on jury instruction
and to instruct the jury.
At sentencing on November 22, 2013, the trial court indicated that its tentative
decision was to sentence appellant to a midterm sentence of three years on count 1, but
after argument from appellant and the prosecution,16 sentenced appellant to the upper
term of four years on count 1 based on two aggravating factors.17
B. Relevant Law
As appellant correctly states, the United States Constitution guarantees the right of
self-representation and the right to assistance of counsel (Faretta v. California (1975)
422 U.S. 806, 834), but a defendant “has no right, under either the federal or state
Constitution, to ‘hybrid representation.’ Criminal defendants have the constitutional right
to have an attorney represent them, and the right under the federal Constitution to
represent themselves, but these rights are mutually exclusive.” (People v. Moore (2011)
51 Cal. 4th 1104, 1119-1120, fn. omitted; Brookner v. Superior Court (1998) 64
Cal. App. 4th 1390, 1394 [“It seems to us that a defendant either has an attorney or he is
his own attorney–period”].) Likewise, appellant correctly concedes that California law
distinguishes between the roles of standby and advisory counsel: “‘Standby counsel’ is
an attorney appointed for the benefit of the court whose responsibility is to step in and
16
Appellant in essence accused that the court, as well as the prosecutor and
Deputy Owen, of “breaking the law” and causing “huge damage[s]” for the loss of his
house and property he said was worth “hundred thousand of dollars.” The prosecution
argued for a longer sentence, noting that the court was showing compassion in its
tentative decision but that such compassion was unwarranted given appellant’s aggressive
behavior and inflammatory accusations.
17
The court noted the manner in which the crime was carried out indicated
planning, sophistication or professionalism and it involved a large quantity of contraband.
20
represent the defendant if that should become necessary because, for example, the
defendant’s in propria persona status is revoked. [Citations.] ‘Advisory counsel’ by
contrast, is appointed to assist the self-represented defendant if and when the defendant
requests help.” (People v. Blair (2005) 36 Cal. 4th 686, 725, disapproved on another
point in People v. Black (2014) 58 Cal. 4th 912, 919-920.)
Nonetheless, appellant argues that the trial court abused its discretion by
dismissing Symonds based on “this single minor transgression” and should have simply
warned Symonds not to attempt to communicate with appellant through the translator,
thus protecting “appellant’s long-standing grant of stand by counsel.” This error,
appellant argues, was prejudicial because he could not confer with standby counsel prior
to sentencing. But as discussed, standby counsel is appointed for the benefit of the trial
court, not to assist appellant as an advisory counsel would. (See People v. Clark (1992) 3
Cal. 4th 41, 149 [“The court was not required to appoint advisory counsel to assist
defendant. [Citation.] Rather, the court appointed . . . standby counsel for the benefit of
the court in case it became necessary for counsel to step in and complete the trial”].)
Thus, there would have been no right to confer with or receive advice from standby
counsel at the sentencing hearing or at any other point in the proceedings. Moreover, the
record shows that Symonds had been put on notice on at least two other occasions that he
was there as standby counsel only and was not appointed as advisory counsel. In this
context, we find no abuse of discretion.18
18
Appellant suggests that he could have elected to relinquish his in propria
persona status at sentencing but the trial court “did not make him aware of this option.”
The court, however, informed appellant on two occasions when appellant attempted to
seek advice from standby counsel that standby counsel could not assist appellant but
could step-in as his attorney if appellant elected to relinquish his pro. per. status. In
addition, at his Farretta hearing, the court told appellant that if he “decide[d] sometime
down the line to re-accept an attorney represent you, the court will not allow any
continuances . . .” and that if appellant “asked for an attorney sometime down the line,
the court may deny this request and order to you to proceed without an attorney.” Thus,
appellant had been made aware that he could request re-appointment of counsel.
Moreover, it is not as clear as appellant’s suggestion on appeal that, if Symonds had not
been removed as standby counsel, appellant would have requested Symonds’ re-
21
DISPOSITION
The judgment is affirmed in part and reversed in part. The case is remanded for
resentencing consistent with this opinion. We direct the clerk of the superior court to
issue an amended abstract of judgment reflecting the resentencing and to forward a copy
of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
CHANEY, Acting P. J.
We concur:
JOHNSON, J.
MOOR, J.*
appointment given appellant’s apparent low opinion of counsel, including telling the trial
court at his December 24, 2013 sentencing, “My first lawyer was high on heroine [sic],
and you appointed him, and you wanted him to assist me, and he soiled his pants.”
*
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
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