P. v. Khoury CA2/1 ( 2013 )

Filed 3/21/13 P. v. Khoury 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B239108
Plaintiff and Respondent, (Los Angeles Super. Court Nos.
PA066963, PA069046, PA066818)
v.
RICHARD KHOURY,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County. Cynthia
L. Ulfig, Judge. Affirmed.
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris Attorney General, Dane R. Gillette, Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Michael R. Johnsen and Thomas C. Hsieh,
Deputy Attorneys General, for Plaintiff and Respondent.
___________________________________
Defendant Richard Khoury, a qualified medical marijuana patient, operated three
medical marijuana shops in the cities of Northridge, Van Nuys and Encino. In 2010 and
2011, the Los Angeles Police Department executed search warrants at the shops and
Khoury’s home, seizing marijuana, cash, scales, computers, receipts and business
records. Khoury was charged with cultivating marijuana and possession of marijuana for
sale. (Health & Safety Code, §§ 11358, 11359.) He pleaded not guilty.1
Prior to trial, Khoury filed a notice that he would rely on an affirmative defense
provided by the Medical Marijuana Program Act, Health and Safety Code2 section
11362.7 et seq. Section 11362.775 provides: “Qualified patients, persons with valid
identification cards, and the designated primary caregivers of qualified patients and
persons with identification cards, 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 under Section 11357
([possession of marijuana]), 11358 ([cultivation of marijuana]), 11359 [(possession of
marijuana for sale)], 11360 [(transporting, importing, selling, furnishing, or giving away
marijuana)], 11366 [(maintaining a place for the sale, giving away, or use of marijuana)],
11366.5 [(making real property available for the manufacture, storage, or distribution of
controlled substances)], or 11570 [(abatement of nuisance created by premises used for
manufacture, storage, or distribution of controlled substance)].”
Khoury argued he cultivated and possessed marijuana as part of the operation of a
medical marijuana collective within the meaning of section 11362.775. At a hearing on
the matter Khoury represented he would prove he operated a collective and each person
who received marijuana from his operation was a member of the collective. Under
questioning by the court Khoury’s counsel admitted that of approximately 4,000
1 Khoury was also charged with one count of attempting to dissuade a witness. (Pen.
Code, § 136.1, subd. (a)(2).) This count was dismissed contingent upon the continuing
validity of the plea and sentence on the other counts.
2 Undesignated statutory references are to the Health and Safety Code.
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members of the collective, only about a dozen actually worked in the cultivation and
distribution of marijuana; the remainder contributed only money.
The trial court ruled that for a medical marijuana collective to fall within the scope
of the defense offered by the Medical Marijuana Program Act, members must either take
some action to benefit the organization beyond the mere payment of money or be
represented in the collective by a primary caregiver. The court found Khoury’s collective
did not meet either of these requirements. It therefore denied his request to present an
affirmative defense under section 11362.775.
Khoury then changed his plea to no contest in exchange for a one-year jail
sentence (which he had already served), a suspended prison sentence, and five years
probation.
Khoury obtained a certificate of probable cause and filed a timely appeal. We
appointed counsel to represent him on appeal, and after examining the record counsel
filed an opening brief raising no issues and asking this court to review the record
independently. On May 29, 2012, we advised Khoury he had 30 days within which to
personally submit any contentions or issues he wished us to consider. He did not
respond.
We also requested briefing on two questions: Does section 11362.775 provide
immunity or an affirmative defense? Was Khoury’s offer of proof sufficient to send his
section 11362.775 defense to the jury? Both Khoury’s counsel and the Attorney General
filed letter briefs answering both questions.
Khoury’s no contest plea limits the potential scope of his appeal to “constitutional,
jurisdictional, or other grounds going to the legality of the proceedings,” “[g]rounds that
arose after entry of the plea and do not affect the plea’s validity,” or “[t]he denial of a
motion to suppress evidence under Penal Code section 1538.5.” (Pen. Code, § 1237.5,
subd. (a); Cal. Rules of Court, rule 8.304(b).) The record demonstrates no such issue
exists. (See People v. Mower (2002) 28 Cal.4th 457, 474-475 [section 11362.775
provides limited immunity to charges of possession and cultivation of marijuana, an
immunity that must be asserted by the defendant as a defense]; People v. Marlin (2004)
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124 Cal.App.4th 559, 567 [by pleading no contest a defendant waives his right to assert
defenses].)
We have examined the entire record and are satisfied that Khoury’s counsel has
fully complied with the responsibilities set forth in People v. Kelly (2006) 40 Cal.4th 106,
109-110 and People v. Wende (1979) 25 Cal.3d 436, 441. No arguable issues exist.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
CHANEY, J.
We concur:
MALLANO, P. J.
JOHNSON, J.
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