People v. Hennig CA3 ( 2015 )

Filed 10/27/15 P. v. Hennig CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Siskiyou)
----
THE PEOPLE,
Plaintiff and Respondent, C071088
v. (Super. Ct. No.
MCYKCRF070002229002)
RONALD THOMAS HENNIG,
Defendant and Appellant.
Law enforcement officers executed a search warrant on defendant Ronald Thomas
Hennig’s ranch and seized 14 to 15 pounds of marijuana buds, 19 pounds of leafy
marijuana material, 188 marijuana plants, four firearms, and suspected concentrated
cannabis and psilocybin mushrooms. A jury convicted defendant of illegally cultivating
marijuana, possessing marijuana for sale, and theft of utility services. The trial court
placed defendant on formal probation for five years with 365 days in jail.
Defendant now contends (1) the trial court erred in failing to instruct the jury on
the Compassionate Use Act (CUA) in connection with the charge of possession of
marijuana for sale; (2) the trial court defined marijuana too narrowly in connection with
the count for illegally cultivating marijuana; (3) the trial court erred in excluding
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evidence about whether a patient can stockpile a two-year supply of marijuana; (4) the
trial court erred in excluding a defense expert’s testimony about the average marijuana
dosage prescribed by California doctors; (5) there is no substantial evidence that law
enforcement witnesses had expertise in differentiating between persons who possess
marijuana for personal medical needs and those who possess marijuana for sale; (6) a
sheriff’s deputy should not have been allowed to testify about the provisions of the CUA
and the Medical Marijuana Program Act (MMPA), and defendant’s trial counsel was
incompetent for failing to object; (7) the prosecutor committed misconduct by eliciting
improper testimony and misstating the law; (8) defendant’s trial counsel was ineffective
in other respects; (9) the trial court erred in admitting defendant’s statements to a law
enforcement officer in violation of Miranda v. Arizona (1966) 384 U.S. 436 [16 L. Ed. 2d
694] (Miranda); and (10) the cumulative effect of the errors prejudiced defendant.
We conclude (1) the trial court correctly instructed the jury that it may not convict
defendant of possessing marijuana for sale if defendant possessed marijuana for personal
medical purposes; (2) the instructional error regarding the definition of marijuana did not
prejudice defendant; (3) the trial court did not abuse its discretion in excluding evidence
regarding hypothetical stockpiling of marijuana; (4) the trial court did not abuse its
discretion in limiting expert testimony about typical practice by doctors; (5) defendant
forfeited his challenge to law enforcement witness expertise by not objecting at trial; (6)
defendant forfeited his challenge to the testimony about the CUA and the MMPA
because he did not object in trial court, and he has not established ineffective assistance;
(7) defendant also forfeited his claims of prosecutorial misconduct and failed to establish
related ineffective assistance claims; (8) defendant has not shown that his trial counsel’s
representation was deficient or that the deficiency resulted in prejudice; (9) Miranda
warnings were not required because defendant was not in custody when he answered the
officer’s questions; and (10) defendant’s claim of cumulative prejudice lacks merit.
We will affirm the judgment.
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BACKGROUND
Siskiyou County Sheriff’s Deputy Adam Zanni saw a significant number of
marijuana plants growing under a tarp on defendant’s 40-acre property during aerial
surveillance. Deputy Zanni conducted a second aerial surveillance over defendant’s
property two months later. He saw the tarp had been removed and some of the marijuana
plants had been harvested.
Deputy Zanni and 10 other law enforcement officers subsequently went to
defendant’s property to execute a search warrant for marijuana and evidence of marijuana
sales. There were a number of buildings on defendant’s property. There was a main
residence, a new single family dwelling that was under construction, a four-car garage or
shop with a studio apartment above it, two barns, a chicken coop, a standing carport, and
three portable carports. Defendant and his wife Loma Lee Brookbank lived in the main
residence.
As Deputy Zanni drove onto the property, defendant came out of the main
residence. Defendant spoke with Deputy Zanni in front of the main residence. Deputy
Zanni told defendant he had a search warrant for marijuana.
Deputy Zanni asked defendant if he was growing marijuana on the property.
Defendant said he had 30 marijuana plants. Deputy Zanni asked defendant if he had
processed marijuana. Defendant was hesitant, but ultimately said he had been growing
marijuana with two other people, and he had harvested all the marijuana. According to
Deputy Zanni, defendant said he had a small amount of processed marijuana for personal
use, he gave the other people their marijuana, and he gave what was left over to friends.
Defendant told Deputy Zanni marijuana was being grown in the shop. Defendant
unlocked the shop door. Defendant then asked to speak with an attorney and stopped
talking to Deputy Zanni.
At some point in time, Brookbank showed Deputy Zanni two medical marijuana
recommendations. Dr. Robert Sullivan, a physician licensed to practice medicine in
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California, issued a recommendation for medical marijuana for defendant about three
months prior to the execution of the search warrant. Dr. Sullivan had the legal authority
to issue recommendations for medical marijuana. Dr. Sullivan recommended two ounces
of marijuana per week for defendant. Dr. Sullivan issued a recommendation for medical
marijuana for Brookbank in the amount of half an ounce per week.
Officers found an indoor marijuana grow in defendant’s shop. The bottom floor of
the shop contained a main grow area, a “mother room,” and a “baby room.” The main
grow area contained 30 mature, female marijuana plants, each three to four feet in height.
There were 14 mature, female marijuana plants in the “mother room”. There were 144
healthy, baby plants in the “baby room.” The baby plants had an average height of three
inches. Deputy Zanni and Deputy Darrell Lemos opined each marijuana plant can
produce a quarter to half a pound of bud or cola at harvest time.
Detective Zanni explained a grower can grow new female marijuana plants by
taking clippings from a “mother plant.” Only female marijuana plants produced buds or
colas, which were the part of the marijuana plant with the highest content of
tetrahydrocannabinol (THC). Law enforcement officers considered marijuana plants to
be mature when the plant was developed sufficiently so that it can be determined whether
it was a male or female plant. Growers typically got rid of a marijuana plant once it was
determined the plant was a male plant because if the male plant pollinated the female
plant, the female plant will not produce buds. Deputy Zanni did not see any male
marijuana plants at defendant’s property.
Defendant’s expert disagreed that any of the marijuana plants on defendant’s
property were mature. According to the defense expert, a marijuana plant was not mature
until it was ready to be harvested.
The plants in the main grow area of the shop were growing under hoods with
lights. Some hoods had built-in fans to pull heat into an exhaust system. There were 10
grow hoods with built-in ventilation fans. Those grow hoods cost at least $200 to $400
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each. Officers found additional grow hoods and high wattage light bulbs in the shop.
Those hoods and light bulbs cost several thousand dollars. The grow hoods and lights
were powered by ballasts. There were 16 ballasts in the shop. Ballasts cost about $250
to $500 each. The shop also contained a ventilation pipe leading from the bottom floor to
the second floor of the shop, exhaust fans, a digital thermometer, timers, and a grow
diary. Defendant admitted he tapped into an electrical source illegally to avoid detection
by law enforcement. The electricity was illegally diverted to the shop for the indoor
grow operation.
In the bottom floor of the shop officers also found a tote with paper grocery bags
containing processed marijuana, another tote containing some processed marijuana on
stem, three bags that appeared to contain processed marijuana, a triple beam scale,
Grodan cubes, and liquid fertilizer. In the upstairs apartment of the shop, officers found
plastic totes with marijuana residue. A useable amount of suspected psilocybin
mushrooms was located in the freezer in the upstairs apartment.
There were stalks, indicating an outdoor marijuana garden, in an area near the
chicken coop. Deputy Zanni said some of the marijuana plants harvested from that area
exceeded seven feet tall. Deputy Zanni estimated there were 12 large marijuana plants in
the outdoor garden, and each of those plants would have yielded two to five pounds of
cola.
Officers found 37 bags of marijuana in one of the barns. Each bag had a quarter to
half a pound of marijuana. The marijuana was placed 15 to 20 feet above the ground.
Officers found a bag containing processed marijuana and a Tupperware container
containing what appeared to be brownies that tested positive for THC in a refrigerator in
one of the carports.
In the main residence, officers found burnt marijuana cigarettes and a Tupperware
container with what Deputy Zanni believed was concentrated cannabis under the kitchen
sink, a Tupperware container with what Deputy Zanni suspected were psilocybin
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mushrooms and a pipe for smoking marijuana in the master bedroom, and marijuana buds
in the living room. Concentrated cannabis is the active ingredient from the marijuana
plant without any plant material in it. Deputy Zanni did not field test the substance he
believed was concentrated cannabis. He opined the marijuana found in the main
residence, which weighed no more than two ounces, appeared to be for personal use. The
People did not have the suspected psilocybin mushrooms tested.
There were medical marijuana recommendations with the name, address, date of
birth, date, and signatures blotted out in defendant’s filing cabinet. The filing cabinet
also contained a document Deputy Zanni opined was a receipt for the sale of marijuana
for $17,100. Officers also found four loaded firearms in the main residence.
In total, officers seized 14 to 15 pounds of marijuana buds from defendant’s
property. According to Deputy Zanni, marijuana like the type recovered from
defendant’s property sold for $2,000 to $2,500 per pound for outdoor grown marijuana,
and $2,500 to $3,500 per pound for indoor grown marijuana.
Deputy Zanni opined, based on his training and experience and the evidence found
at defendant’s property, that defendant had been growing marijuana for a long time and
defendant knew what he was doing. Deputy Zanni described the system in the main grow
area as pretty sophisticated. Deputy Zanni said defendant and Brookbank’s medical
marijuana recommendations allowed them to have a total of eight pounds of marijuana
for medical purposes per year. Defendant had six pounds over what he was supposed to
have. Deputy Zanni opined defendant possessed the marijuana and the marijuana plants
found on his property for purposes of sale, and not for medical use. The opinion was
based on what he saw during surveillance of defendant’s property, the amount of
marijuana officers seized from the property, how the marijuana was hidden and
packaged, the indicia of the indoor grow, the theft of power, the altered marijuana
recommendations, and the sales receipt for marijuana.
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Christopher Conrad, a marijuana expert, testified for the defense. Conrad
determined 11.4 pounds of marijuana buds and about 19 pounds of leafy marijuana
material were seized from defendant’s property. Conrad re-weighed the marijuana buds
and leafy materials seized from defendant’s property about nine months after the
execution of the search warrant. Like Deputy Zanni, Conrad explained the drying of the
plant material could account for part of the difference in the weight Conrad obtained and
the weight Deputy Zanni recorded.
Conrad said the marijuana plants defendant possessed had no useable medical
marijuana because the plants did not have any flowers. He said the leaves of a marijuana
plant would have produced only one or two grams of resin.
Conrad opined defendant’s operation was not sophisticated because the plants
were grown in soil and were hand watered. He said the operation was consistent with a
medical marijuana garden for personal use by more than one person. Conrad explained a
grower needed to constantly replace his marijuana plants because harvesting will kill the
plant. Conrad had not seen medical marijuana recommendations in connection with this
case for anyone other than defendant and Brookbank.
Brookbank testified at the trial. She said she was a medical marijuana patient and
cultivated marijuana for her own use. She never grew marijuana without a doctor’s
recommendation. She primarily ate marijuana. But she also used it in a salve for her
arthritis and smoked it occasionally for nausea.
Brookbank said Adam Nemec planted 24 marijuana plants for defendant and
Brookbank.1 Only 11 of those plants were “successful.” Brookbank testified that the
marijuana was for defendant, Brookbank and the Nemecs to share. Brookbank said she
saw the Nemecs’ medical marijuana recommendations.
1 For clarity we will refer to Adam by his first name and to Adam and his wife
collectively as the Nemecs.
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Defendant also testified at the trial. He admitted he planted marijuana in an
outdoor garden with Adam. Defendant said he grew those marijuana plants with
Brookbank and the Nemecs, and harvested the plants with Brookbank and Adam.
Defendant processed the harvested marijuana and placed the buds in half-pound bags. He
said he hid the processed marijuana in bales of hay in the barn.
With regard to the marijuana plants found in his shop, defendant said he cut a
large number of clones because he always lost a lot. The clones were created before he
got the mother plants. Defendant said he had the mother plants for 10 to 12 days before
the search. According to defendant, Adam gave defendant the 30 marijuana plants that
were in the main grow area for the purpose of growing the plants together.
Defendant testified the marijuana found on his property on the date of the search
was for the personal use of defendant, Brookbank, and the Nemecs for their medical
needs. Defendant said Brookbank had breast cancer, defendant had insomnia, and it was
defendant’s understanding the Nemecs had medical marijuana recommendations.
Defendant explained the altered recommendations officers found were scrap
paper. He denied any intent to distribute the altered recommendations. He said the
document Deputy Zanni described as a sales receipts for marijuana was a souvenir from a
visit to a marijuana dispensary. Defendant claimed the mushrooms found in his house
were amanita muscaria, not psolocybin. And he said the suspected psilocybin
mushrooms found in the shop did not belong to him. He said the Nemecs lived in the
apartment above the shop where the mushrooms were located.
Adam testified for the People. He said he performed ranch and construction work
on defendant’s property. Adam denied helping defendant plant marijuana. He said
defendant required him to help with the outdoor marijuana garden. Adam claimed there
was no arrangement to give him any portion of the marijuana. Adam said when he moved
off defendant’s property before the execution of the search warrant, all of the marijuana
from the outdoor garden had been harvested and he did not take any portion of the
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harvested marijuana. Adam also testified defendant asked for permission to use the
Nemecs’ medical marijuana recommendations to say defendant was growing marijuana
as part of a co-op, and Adam refused.
The jury convicted defendant of cultivating marijuana ( Health & Saf. Code,
§ 11358 - count two),2 possessing marijuana for sale (§ 11359 - count three), and theft of
utility services (Pen. Code, § 498, subd. (b) - count five). The jury found true the
allegations in counts two and three that defendant was armed with a firearm. (Pen. Code,
§ 12022, subd. (a)(1).) The jury acquitted defendant of the count one charge of
possessing concentrated cannabis and the count four charge of possessing psilocybin
mushrooms.
The trial court sentenced defendant to an aggregate term of three years and eight
months. Defendant was sentenced to the midterm of two years on count two, a
consecutive one-year term on the Penal Code section 12022, subdivision (a)(1) finding in
count two, a concurrent term of two years on count three, a concurrent one-year term on
the Penal Code section 12022, subdivision (a)(1) finding in count three, and a
consecutive term of eight months on count five. The trial court stayed execution of the
sentence, placed defendant on five years of formal probation with 365 days in jail, and
ordered credit for time served.
DISCUSSION
I
Defendant contends the trial court erred in failing to instruct the jury on the CUA
in connection with the count three charge of possession of marijuana for sale.
“ ‘ “In determining whether error has been committed in giving or not giving jury
instructions, we must consider the instructions as a whole . . . [and] assume that the jurors
2 Undesignated statutory references are to the Health and Safety Code.
9
are intelligent persons and capable of understanding and correlating all jury instructions
which are given.” [Citation.]’ [Citation.] ‘Instructions should be interpreted, if possible,
so as to support the judgment rather than defeat it if they are reasonably susceptible to
such interpretation.’ [Citation.]” (People v. Ramos (2008) 163 Cal. App. 4th 1082, 1088.)
Applying these principles, we find no error.
The CUA was approved by voter initiative in 1996 “[t]o ensure that seriously ill
Californians have the right to obtain and use marijuana for medical purposes where that
medical use is deemed appropriate and has been recommended by a physician who has
determined that the person’s health would benefit from the use of marijuana in the
treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis,
migraine, or any other illness for which marijuana provides relief.” (§ 11362.5,
subd. (b)(1)(A).) The measure added section 11362.5, which provides an affirmative
defense to prosecution for the crimes of possession and cultivation of marijuana.
(People v. Dowl (2013) 57 Cal. 4th 1079, 1086 (Dowl); People v. Kelly (2010) 47 Cal. 4th
1008, 1013 (Kelly).) The CUA provides that section 11357 (possession of marijuana)
and section 11358 (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. (§ 11362.5, subd. (d).)
The California Supreme Court has observed that the CUA “is a narrow measure
with narrow ends.” (People v. Mentch (2008) 45 Cal. 4th 274, 286, fn. 7; see Ross v.
RagingWire Telecommunications, Inc. (2008) 42 Cal. 4th 920, 929.) Section 11362.5
permits a patient or primary caregiver to possess or cultivate marijuana only in an amount
that is reasonably related to the patient’s current medical needs. (Kelly, supra, 47 Cal.4th
at pp. 1043, 1049.) The statute does not authorize the possession for sale or the sale of
marijuana. (§ 11362.5, subd. (b)(2) [“Nothing in this section shall be construed to
supersede legislation prohibiting persons from engaging in conduct that endangers others,
10
nor to condone the diversion of marijuana for nonmedical purposes.”]; People v.
Urziceanu (2005) 132 Cal. App. 4th 747, 773.)
The Legislature enacted the MMPA in 2003 to clarify the scope of the application
of the CUA, to address additional issues that were not included within the CUA which
must be resolved in order to promote the fair and orderly implementation of the statute,
and to facilitate the prompt identification of qualified patients and their designated
primary caregivers in order to avoid unnecessary arrest and prosecution of those
individuals. (People v. Wright (2006) 40 Cal. 4th 81, 93 (Wright).) While the MMPA
provides an affirmative defense to the crime of possessing marijuana for sale by persons
entitled to the protections of the CUA, it does not authorize the distribution of marijuana
for profit. (§§ 11362.7, subds. (f), (g), 11362.765, subds. (a), (b).)
The totality of the trial court’s instructions here correctly informed the jury it may
not convict the defendant of possessing marijuana for sale if defendant possessed marijuana
for personal medical purposes. The trial court said the CUA allows a person to possess or
cultivate marijuana for personal medical purposes when a physician has recommended such
use, and the amount of marijuana possessed or cultivated must be reasonably related to the
patient’s current medical needs. With regard to the count three charge, the trial court
instructed that the jury may convict defendant of possessing marijuana for sale only if the
jury found defendant intended to sell marijuana. The trial court defined selling as
“exchanging the marijuana for money, services or anything of value.” The trial court said
defendant did not have the requisite intent for the crime of possession of marijuana for sale
if he mistakenly believed other people were cultivating marijuana with him, and each
possessed valid medical marijuana recommendations. The trial court said the jury must find
defendant not guilty on the count three charge if the jury had reasonable doubt about
whether defendant had the specific intent required for possession of marijuana for sale. The
trial court told the jury to consider the instructions together.
Defendant’s instructional error claim has no merit.
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II
Defendant next claims the trial court erred in defining marijuana too narrowly in
connection with the count two charge of illegally cultivating marijuana.
For purposes of the CUA, marijuana is “all parts of the plant Cannabis sativa L.,
whether growing or not; the seeds thereof; the resin extracted from any part of the plant;
and every compound, manufacture, salt, derivative, mixture, or preparation of the plant,
its seeds or resin. It does not include the mature stalks of the plant, fiber produced from
the stalks, oil or cake made from the seeds of the plant, any other compound,
manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the
resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is
incapable of germination.” (§ 11018.) Courts have construed the term marijuana to
include all plants popularly known as marijuana that contain THC. (People v. Hamilton
(1980) 105 Cal. App. 3d 113, 117; People v. Van Alstyne (1975) 46 Cal. App. 3d 900, 917.)
In contrast with the broad definition of marijuana in section 11018, only the dried
mature processed flowers of the female cannabis plant or the plant conversion is
considered when determining allowable quantities of marijuana under the MMPA.
(§ 11362.77, subd. (d).)
The trial court correctly defined marijuana pursuant to section 11018 when it
instructed the jury on the count two charge of unlawfully cultivating marijuana.
However, the trial court also said that for purposes of the CUA, marijuana is defined as
only the dried mature processed flowers of the female cannabis plant or the plant
conversion. The latter statement was incorrect. Nevertheless, the instructional error did
not result in prejudice.
As we have explained, the CUA authorizes a patient to possess or cultivate
marijuana in an amount that is reasonably related to his current medical needs.
(§ 11362.5, subd. (d); Kelly, supra, 47 Cal.4th at pp. 1043, 1049; People v. Trippet
(1997) 56 Cal. App. 4th 1532, 1549 (Trippet).) The defendant bears the burden of raising
12
a reasonable doubt as to the facts underlying the CUA defense. (People v. Mower (2002)
28 Cal. 4th 457, 477, 481.) The recommending physician’s opinion regarding dosage is
one type of evidence relevant to the determination of the amount of marijuana reasonably
related to the patient’s current medical needs. (Trippet, supra, 56 Cal.App.4th at
p. 1549.) But ultimately the trier of fact determines the patient’s current medical needs.
(Ibid.) The MMPA does not restrict the quantity of marijuana a patient may possess
under the CUA. (Kelly, supra, 47 Cal.4th at pp. 1043-1046, 1049.)
The evidence showed that defendant had more marijuana than was reasonably
related to his and Brookbank’s then-current medical needs. Defendant had a
recommendation for two ounces of marijuana per week, and Brookbank had a
recommendation for half an ounce of marijuana per week. Those recommendations
approved a total of eight pounds of marijuana for medical purposes for defendant and
Brookbank per year. Defendant had 44 mature marijuana plants and 144 immature
marijuana plants, in addition to a minimum of 11.4 pounds of marijuana buds and about
19 pounds of leafy marijuana material. Deputy Lemos and Deputy Zanni opined each
marijuana plant could yield a quarter to half a pound of useable cola at harvest time.
There is no evidence all of those plants were reasonably related to the then-current
medical needs of defendant or Brookbank.
Moreover, the evidence established beyond a reasonable doubt that defendant
intended to sell marijuana. There were 37 bags of marijuana buds hidden in hay bales, 15
to 20 feet above the ground, in defendant’s barn. Deputy Zanni had never encountered
marijuana used for personal medical purposes stored in that manner. Each bag contained
a quarter to half a pound of marijuana, which was a commonly sold quantity for
marijuana. Some of the marijuana was packed in plastic turkey baking bags, a commonly
used container for packaging marijuana for sale. Defendant also possessed a triple beam
scale, something Deputy Zanni said medical marijuana users did not commonly use.
Officers found a sales receipt for over $17,000 of marijuana in defendant’s home. The
13
sales receipt referenced three pounds of “Smile” and “Eggman.” A grow diary
containing Brookbank’s handwritten notes referenced “Smile” and “Egg.” A diary entry
dated the same month and year as the sales receipt referenced “box plus two eggs.” The
diary referenced a substantial amount of marijuana. Defendant also possessed altered
medical marijuana recommendations, which Deputy Zanni said defendant could provide
to people who bought marijuana from him. Additionally, defendant had 188 marijuana
plants.
Defendant claimed the Nemecs had medical marijuana recommendations, and
defendant cultivated marijuana for defendant, Brookbank and the Nemecs’ medical
needs. However, Adam contradicted defendant’s claim. Adam’s testimony indicates
defendant tried to concoct a defense involving the Nemecs’ medical marijuana
recommendations after the search at defendant’s property.
Defendant also contends the trial court’s instruction limited his CUA defense to
the dried, mature processed or converted marijuana and excluded the plants he was
growing. He is correct. However, we see no prejudice in the error. In addition to
evidence that defendant possessed more marijuana than was reasonably necessary for his
and Brookbank’s medical needs, neither party argued the CUA did not protect the
cultivation of marijuana plants. To the contrary, the prosecutor explained growing
marijuana in an amount reasonably related to a person’s current medical needs was
protected. But the prosecutor said defendant had more plants than were authorized by the
CUA. Defense counsel, in turn, argued defendant grew an amount reasonably related to
the medical recommendations for defendant, Brookbank, and the Nemecs. Defense
counsel went even further and said there was no rule on how many marijuana plants a
patient could have.
Under the circumstances, the error in defining the term marijuana for purposes of
the CUA was harmless under any standard of prejudice. (People v. Fudge (1994)
7 Cal. 4th 1075, 1110-1111.)
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III
Defendant also argues the trial court prejudicially erred in sustaining the
prosecutor’s objection to defense questioning about whether a person can stockpile a two-
year supply of medical marijuana.
Defense counsel asked Deputy Zanni, during cross examination, whether a
medical marijuana patient who anticipated some sort of disability was permitted to
stockpile a two-year supply of marijuana. The prosecutor objected that the question was
compound, an improper hypothetical, and sought irrelevant information because only the
patient’s current medical needs were relevant. Defense counsel said he thought there was
no prohibition to “laying in a supply for the future,” and the information sought was
relevant. The trial court indicated it was inclined to sustain the prosecutor’s objection
because case law referred to current medical needs, not anticipated or extended medical
needs. The trial court said section 11362.77 “speaks to amounts that may be held
currently” and the quantities set forth in that statute demonstrate “an anticipation that this
is going to be of a short period and not out prolonged into the future.” Section 11632.77
provides that a qualified patient may possess no more than eight ounces of dried
marijuana and no more than six mature or 12 immature marijuana plants per qualified
patient, unless there is a doctor’s recommendation that the patient may possess more
marijuana. The trial court said section 11362.77 allowed for what was recommended,
and Dr. Sullivan’s recommendation was for one year only. The trial court invited further
research and additional argument. However, defense counsel said he was willing to
accept the trial court’s indicated ruling.
A trial court’s decision to admit or exclude evidence is reviewable for abuse of
discretion. (People v. Vieira (2005) 35 Cal. 4th 264, 292.) We will not disturb the trial
court’s ruling if it is correct for any reason. (People v. Smithey (1999) 20 Cal. 4th 936,
971-972; People v. Zapien (1993) 4 Cal. 4th 929, 976.)
15
“Within limits, the law permits the examination of an expert witness with
hypothetical facts. ‘Generally, an expert may render opinion testimony on the basis of
facts given “in a hypothetical question that asks the expert to assume their truth.”
[Citation.] Such a hypothetical question must be rooted in facts shown by the evidence,
however.’ [Citation.] ‘A hypothetical question . . . may be “framed upon any theory
which can be deduced” from any evidence properly admitted at trial, including the
assumption of “any facts within the limits of the evidence,” and a prosecutor may elicit
an expert opinion by employing a hypothetical based upon such evidence.’ [Citation.]
. . . . [¶] Although the field of permissible hypothetical questions is broad, a party cannot
use this method of questioning a witness to place before the jury facts divorced from the
actual evidence and for which no evidence is ever introduced.” (People v. Boyette (2002)
29 Cal. 4th 381, 449, italics omitted (Boyette).)
Even if defendant, Brookbank and the Nemecs had anticipated medical needs for
which marijuana would provide relief, there is no testimony they were stockpiling
medical marijuana for such future medical needs.3 Adam disputed defendant’s claim that
defendant possessed or cultivated marijuana for Adam’s medical needs. Because there is
no evidence supporting the hypothetical scenario defense counsel posed, defense
counsel’s question was improper. The trial court did not abuse its discretion in sustaining
the People’s objection to defense counsel’s question.
Citing the trial court’s indicated ruling on the objection, defendant argues the trial
court erroneously limited the amount of marijuana defendant may possess under the CUA
3 Conrad did not say he had any knowledge about the Nemecs’ medical conditions or
needs. Although Adam said he had insomnia, there is no competent evidence about the
quantity of marijuana required to meet that medical need. In addition, there is no
evidence about any medical need of Adam’s wife. Conrad admitted he was guessing a
little bit about the quantity of marijuana that would be reasonable for two persons with
recommendations for unknown amounts of marijuana.
16
to the amounts stated in section 11362.77, subdivision (a), that is, no more than eight
ounces of dried marijuana and no more than six mature or 12 immature marijuana plants
per qualified patient.
We do not interpret the trial court’s indicated ruling as a cap on the amount of
marijuana defendant could possess to meet his then-current medical needs. Rather, the
trial court reasoned defendant could possess an amount consistent with his then-current
medical needs, but section 11362.77 and defendant’s medical marijuana recommendation
did not support defense counsel’s claim that defendant may stockpile a supply that was
“prolonged into the future.” The trial court’s ruling that defendant may possess only an
amount of marijuana reasonably necessary for his then-current medical needs was
correct. (Kelly, supra, 47 Cal.4th at pp. 1043, 1049.) While the quantity limitations in
section 11362.77, subdivision (a) do not restrict the amount of marijuana a patient may
possess or cultivate under the CUA, the CUA does not authorize a patient to possess or
cultivate an unlimited quantity of marijuana. (Id. at pp. 1043-1046, 1049; Trippet, supra,
56 Cal.App.4th at pp. 1546 & fn. 8, 1549.)
Defendant further contends the amount of marijuana he may possess under the
CUA is not limited to any dosage specified in Dr. Sullivan’s recommendations or to the
one-year expiration date found on Dr. Sullivan’s written recommendations. Defendant is
correct that the doctor’s recommendation does not limit the amount of marijuana he may
possess under the CUA. (People v. Windus (2008) 165 Cal. App. 4th 634, 642-643
(Windus).) But the recommendations are strong evidence of the quantity allowable under
the CUA. Defendant points to no other competent evidence showing the then-current
medical needs for him, Brookbank and/or the Nemecs.
Defendant cites Windus for the proposition that the CUA does not require a
recommendation to be renewed. In Windus, a doctor gave the defendant a written
recommendation for marijuana and recommended the defendant be reevaluated annually.
(Windus, supra, 165 Cal.App.4th at p. 638.) The doctor’s recommendation did not
17
specify a dosage. (Ibid.) At the time of his arrest for possession of 1.6 pounds of
marijuana for sale, the defendant had not seen the doctor in over three years. (Id. at
pp. 637-638.) The defendant sought to present a CUA defense. (Id. at p. 638.)
The defendant’s doctor testified at an evidentiary hearing that the defendant
suffered from chronic back pain, and his medical condition when he was arrested was the
same as it was when the doctor last saw the defendant. (Windus, supra, 165 Cal.App.4th
at pp. 638, 641.) The doctor opined it was appropriate for the defendant to have three to
six pounds of marijuana for his severe chronic pain. (Id. at p. 641.) The trial court ruled
the defendant could not present a CUA defense. (Id. at p. 639.)
On appeal, the Attorney General in Windus argued the defendant’s
recommendation had expired, and there was no evidence regarding the amount of
marijuana the defendant required to satisfy his medical need at the time of his arrest.
(Windus, supra, 165 Cal.App.4th at p. 641.) The appellate court noted that nothing in the
CUA required a patient to periodically renew a doctor’s recommendation or imposed an
expiration period for a recommendation. (Ibid.) There was no evidence the defendant’s
failure to see the doctor annually invalidated his recommendation. (Ibid.) In fact, there
was evidence to the contrary. The appellate court concluded the defendant could present
evidence on whether he possessed marijuana for his personal medical needs. (Ibid.)
Unlike in Windus, defendant and Brookbank’s recommendations expressly state,
“This approval will expire one year from [August 30, 2006].” The trial court’s reliance
on the expiration date stated in defendant and Brookbank’s recommendations was not
arbitrary.
The defendant’s doctor in Windus said the 1.6 pounds of marijuana the defendant
possessed was within the amount necessary to meet his then-existing medical needs.
(Windus, supra, 165 Cal.App.4th at p. 638.) The record in this case contains no similar
evidence. Rather, the evidence indicates the then-current medical need for defendant and
Brookbank was eight pounds of marijuana per year.
18
We agree with defendant’s assertion that, under the CUA, he was entitled to
introduce evidence showing the quantity of marijuana he possessed was reasonably
related to his then-current medical needs. But the trial court allowed defendant to present
such evidence.
The trial court did not err in sustaining the objection. Accordingly, we need not
consider defendant’s ineffective assistance claim.
IV
Defendant further claims the trial court violated Penal Code section 1054.5 by
excluding Conrad’s testimony about the average dosage of marijuana prescribed by
doctors in California. Defendant claims the exclusion of evidence should have been a
sanction of last resort and it violated defendant’s constitutional right to present a defense.
A
The People asked defendant to disclose the names and addresses of witnesses
defendant anticipated calling at trial, oral statements by defense experts, and witness
statements and reports. The People subsequently moved to compel discovery from
defendant, contending defendant had not provided any discovery to the People. In
response to the motion, defendant produced a two-page response listing five witnesses.
Defendant did not disclose Conrad as a potential witness, and did not produce any
statement or report by Conrad. The trial court ordered defendant to produce the
requested discovery by July 16, 2010.
Later, the People made the same request for discovery on defendant’s subsequent
counsel. Having received no response to the request, the People moved to compel
discovery. The attorney who ultimately represented defendant at trial represented
defendant at the hearing on the People’s motion. The People asked defendant to provide
the name of his expert if he intended to offer a CUA defense and a report of what the
expert would say. The trial court ordered defendant to provide the requested information
by July 24, 2011. A trial date of September 13, 2011, was set at that time.
19
On July 26, 2011, defense counsel informed the prosecutor the defense had
retained Conrad as its expert, and Conrad had an opinion on the “actual quantity of
useable marijuana.” Defendant did not say what opinion Conrad held.
The People moved to exclude Conrad’s testimony and all expert testimony
regarding the CUA and the MMPA as a discovery sanction against defendant. The trial
court continued the People’s motion to allow the parties to meet and confer about
discovery issues. The trial date was continued to January 4, 2012, upon defendant’s
motion.
Defendant provided the People a copy of Conrad’s September 7, 2007 notes and a
December 21, 2011 letter summarizing what Conrad told defendant’s trial counsel.
Except for records from Dr. Sullivan, defendant provided no discovery with regard to the
amount of marijuana reasonably related to any person’s current medical needs.
The People moved in limine to sanction defendant for disobeying the trial court’s
discovery orders by limiting Conrad’s testimony to what was described in the materials
disclosed to the prosecutor. The trial court said what defendant had produced was
inadequate to help the People prepare their case. The trial court suggested an evidentiary
hearing to allow the People to hear what Conrad would say at trial.
Conrad testified outside the presence of the jury. He said he met numerous times
with defense counsel between September 7, 2007, and December 21, 2011, and he took
photographs as part of his investigation. Conrad said the December 21, 2011 and
September 7, 2007 letters were the only writings of his communications with defense
counsel that he was aware of. Conrad said he did not know of anything he would testify
about at trial that was not contained in the December 21, 2011 and September 7, 2007
letters, except for a conversation he had with a Dr. Denny in March 2008. Defense
counsel similarly represented the subject matter of Conrad’s expected trial testimony
would “be generally the same” as that described in the disclosed letters, but the trial
testimony “may go into a little bit greater detail.” After hearing argument, the trial court
20
granted the People’s motion to limit Conrad’s testimony to the information provided in
the December 21, 2011 and September 7, 2007 letters discovered to the People. The
disclosed letters did not state Conrad would offer an opinion about the average dosage of
marijuana prescribed by doctors in California.
Nonetheless, during his direct examination of Conrad, defense counsel asked, “Do
you have any idea what the average amount prescribed for a person is in this state?”
Conrad answered, “Most doctors don’t put any quantity because it ranges from 12 pounds
or so down to a few ounces per patient. So the doctors generally don’t . . . specify and
the California Medical Association’s attorney has advised them to not do so.” The
People moved to strike the testimony based on the trial court’s ruling on the People’s in
limine motion. Defense counsel withdrew the question. The trial court sustained the
prosecutor’s objection and struck Conrad’s answer.
B
Penal Code sections 1054 et seq. governs discovery in criminal cases. The
purpose of the statute “is to promote ascertainment of truth by liberal discovery rules
which allow parties to obtain information in order to prepare their cases and reduce the
chance of surprise at trial. [Citation.] Reciprocal discovery is intended to protect the
public interest in a full and truthful disclosure of critical facts, to promote the People’s
interest in preventing a last minute defense, and to reduce the risk of judgments based on
incomplete testimony.” (People v. Jackson (1993) 15 Cal. App. 4th 1197, 1201
(Jackson).)
Penal Code section 1054.3 requires a defendant and his attorney to disclose to the
prosecutor the names and addresses of persons, other than the defendant, the defendant
reasonably anticipates will likely be called as witnesses at trial. (Pen. Code, § 1054.3,
subd. (a)(1); Izazaga v. Superior Court (1991) 54 Cal. 3d 356, 375.) A defendant and his
attorney must also disclose any relevant written or recorded statements of those witnesses
or reports of the statements of those persons, including any reports or statements of
21
experts made in connection with the case. (Pen. Code, § 1054.3, subd. (a)(1).) The
obligation to disclose exists even if a defense expert did not create a written report.
(People v. Lamb (2006) 136 Cal. App. 4th 575, 580 [defendant was still obligated to
provide discovery even though his accident reconstruction expert did not prepare a report
where the expert made notes about interviews with witnesses, made calculations to
determine the cause of the accident, made notes about his inspections of the vehicles, and
conveyed this information and his opinion orally to defense counsel].)
The required disclosures must be made at least 30 days prior to the trial, unless
good cause is shown why a disclosure should be denied, restricted, or deferred. (Pen.
Code, § 1054.7.) If the material and information becomes known to, or comes into the
possession of, a party within 30 days of trial, disclosure shall be made immediately,
unless good cause is shown why a disclosure should be denied, restricted, or deferred.
(Pen. Code, § 1054.7.) “Good cause” means threats or possible danger to the safety of a
victim or witness, possible loss or destruction of evidence, or possible compromise of
other investigations by law enforcement. (Pen. Code, § 1054.7.)
The trial court may make an order requiring disclosure upon a showing that a party
has not complied with the required discovery disclosure provisions. (Pen. Code,
§ 1054.5, subd. (b).) The court may make any order, including, but not limited to,
immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a
witness or the presentation of real evidence, or continuance of the matter. (Ibid.) The
court may prohibit the testimony of a witness only if all other sanctions have been
exhausted. (Pen. Code, § 1054.5, subd. (c).) The trial court’s discovery sanction order
is reviewed for abuse of discretion. (People v. Superior Court (Mitchell) (2010)
184 Cal. App. 4th 451, 459; People v. Lamb, supra, 136 Cal.App.4th at p. 581.)
Here, the trial court twice ordered defendant to disclose the names and addresses
of witnesses defendant anticipated calling at trial and any statements and reports by
defense experts. In particular, the trial court’s June 2011 order required defendant to
22
provide the name of his expert with regard to his CUA defense and a written report of
what that expert would say. Defendant must have anticipated presenting a CUA defense
given defendant’s statements to Deputy Zanni on the day of the search. And Conrad
examined the marijuana seized from defendant’s property in 2007. Yet defendant did not
disclose Conrad as a potential witness until July 2011. Defendant did not produce any
writing concerning what Conrad would testify about until late 2011, shortly before the
start of trial. There is no showing of good cause why defendant waited more than four
years to provide the People with a copy of Conrad’s September 7, 2007 letter.
Under the circumstances, an order requiring immediate disclosure, contempt, or a
continuance were not proper remedies. (Jackson, supra, 15 Cal.App.4th at p. 1203
[exclusion of defense witness’s testimony is proper where lesser sanctions would not
have been adequate].) The complaint against defendant was about four years old, and the
trial court had already indicated it would not grant any further trial continuances.
Moreover, Conrad and defense counsel represented that the December 21, 2011 and
September 7, 2007 letters described what Conrad would testify about at the trial. Those
letters do not state Conrad would render an opinion about the typical practice of doctors
in California in prescribing marijuana.
The trial court’s order was limited in scope. The trial court permitted defendant to
present Conrad’s testimony, but limited the scope of the testimony to the subjects
described in the disclosed letters. In light of the trial court’s discovery orders,
defendant’s late disclosure, and defense counsel’s representation that the disclosed letters
stated what Conrad would testify about at trial, allowing defendant to present evidence
beyond the scope of the disclosed letters would not only have prejudiced the People, who
did not have an expert on what California doctors typically recommended, but would also
have encouraged non-compliance with pretrial discovery rules and discovery orders. The
trial court did not abuse its discretion in limiting Conrad’s testimony.
23
In any event, we perceive no prejudice resulting from the order excluding
Conrad’s testimony about the average dosage in California. The CUA permitted
defendant to possess or cultivate marijuana in a quantity reasonably related to his then-
current medical needs, not an average dosage. (Kelly, supra, 47 Cal.4th at pp. 1043,
1049.) Dr. Sullivan specified a dosage for defendant and Brookbank. Defendant did not
dispute those recommended amounts. Therefore, whether California doctors typically do
not specify a dosage amount in their recommendations is of no consequence. Under the
present facts, the trial court’s order does not violate defendant’s right to present evidence.
(Jackson, supra, 15 Cal.App.4th at pp. 1203-1204; see Taylor v. Illinois (1988) 484 U.S.
400, 414-415 [98 L. Ed. 2d 798, 814] [the defendant’s right to present evidence must be
weighed against the integrity of the adversary process, which depends both on the
presentation of reliable evidence and the rejection of unreliable evidence, the interest in
the fair and efficient administration of justice, and the potential prejudice to the truth-
determining function of the trial process].)
Defendant says Conrad was entitled to give the excluded opinion under the trial
court’s ruling. Not so. The disclosed letters did not state that Conrad would offer an
opinion about the average dosage doctors prescribed in California.
Defendant also claims the trial court and trial counsel incorrectly informed the jury
that Dr. Sullivan’s recommendations determined what was reasonably related to the
medical needs of defendant and Brookbank. We conclude there was no instructional
error. Although defense counsel incorrectly said that Dr. Sullivan determined what was
reasonable and the jury could not question Dr. Sullivan’s determination, the trial court’s
instructions to the jury do not say that the doctor’s recommendations dictated what was
reasonably related to defendant and Brookbank’s medical needs.4 We presume the jury
4 The trial court instructed, in relevant part, “Possession or cultivation of marijuana is
lawful if authorized by the Compassionate Use Act. The Compassionate Use Act allows
24
followed the trial court’s instructions. (Boyette, supra, 29 Cal.4th at p. 436.) Moreover,
the prosecutor did not argue that Dr. Sullivan’s recommendations dictated the amount of
marijuana defendant may possess or cultivate under the CUA. The prosecutor argued,
“It’s not what the patient says. It’s not what the doctor says. It’s what you say.”
Although the prosecutor said the doctor’s recommendation “defined” how much
marijuana defendant and Brookbank could possess, he also said the jury will decide how
much marijuana a person needed. And the prosecutor subsequently repeated that the jury
must decide what was reasonably related to a medical condition. That statement was
consistent with the law. (Trippet, supra, 56 Cal.App.4th at p. 1549.)
V
Defendant next argues that his convictions on count two (illegally cultivating
marijuana) and count three (possessing marijuana for sale) must be reversed because
there is no substantial evidence that Deputy Zanni and Deputy Lemos had any expertise
in differentiating between persons who possess marijuana for personal medical needs and
those who possess marijuana for sale.
The claim that evidence is insufficient to establish that a witness is qualified to
render an expert opinion may not be raised on appeal if the defendant failed to object on
that ground in the trial court. (Dowl, supra, 57 Cal.4th at pp. 1087, 1089.) This rule of
forfeiture allows the trial court to “ ‘take steps to prevent error from infecting the
remainder of the trial’ and to develop an adequate record.” (Id. at p. 1087.) Because a
a person to possess or cultivate marijuana for personal medical purposes when a
physician has recommended such use. The amount of marijuana possessed or cultivated
must be reasonably related to the patient’s current medical needs.” [¶] The People have
the burden of proving beyond a reasonable doubt that the defendant was not authorized to
possess or cultivate marijuana for medical purposes. If the People have not met this
burden you must find the defendant not guilty of this crime.” The trial court also told the
jury, “You must follow the law as I explain it to you even if you disagree with it. If you
believe that the attorneys’s [sic] comments on the law conflict with my instructions, you
must follow my instructions.”
25
party offering expert testimony need not establish the witness’s qualifications absent an
objection, an opposing party’s failure to object at trial also denies the offering party the
opportunity to provide additional testimony to lay a foundation for the expert’s
testimony. (Id. at p. 1088.)
Defendant did not object at trial to Deputy Zanni or Deputy Lemos’s qualifications
to testify. He thereby forfeited his appellate claim. In any event, the claim lacks merit.
Deputy Zanni was a 14-year veteran with the Siskiyou County Sheriff’s
Department. He received training on medical marijuana from the California Narcotics
Officers Association. He worked on hundreds of investigations involving marijuana. In
about 100 of the cases he investigated, individuals presented him with medical marijuana
recommendations that appeared valid, and he accepted those recommendations. He
talked to hundreds of people who cultivated marijuana, including persons who cultivated
marijuana for medical use. He talked to people about their medical marijuana needs,
possession, and cultivation. He had seen medical marijuana. Deputy Zanni was assigned
to the Siskiyou County Sheriff’s Department Marijuana Eradication Team. That team
investigated all marijuana-related crimes and kept current with medical marijuana trends.
Deputy Zanni testified about the practices of medical marijuana users. He said,
for example, that medical marijuana users commonly kept marijuana in their homes. He
opined that the marijuana found in defendant’s living room appeared to be “personal use
amounts.”
Deputy Zanni also received training on indoor and outdoor cultivation, processing,
packaging, sale and identification of marijuana. He primarily investigated marijuana
offenses for four and a half years, and had worked on hundreds of investigations
involving marijuana and illegal marijuana processing operations.
The expert in People v. Chakos (2007) 158 Cal. App. 4th 357, 361, a case defendant
cites, had no expertise in distinguishing lawful marijuana possession and possession of
marijuana for sale. (Id. at pp. 367-368.) Here, Deputy Zanni had training and experience
26
in distinguishing between lawful and unlawful marijuana possession. The record does
not support defendant’s claim that Deputy Zanni was not qualified to render an opinion
about whether marijuana was possessed or cultivated for personal medical use or for sale.
Defendant argues Deputy Lemos was also unqualified to testify as an expert on
medical marijuana needs and practices. But defendant does not cite the portion of the
record where such testimony appears. Based on our review of the record, it does not
appear that Deputy Lemos rendered an opinion about whether defendant possessed or
cultivated marijuana for sale or for personal use.
In view of our conclusions, we need not address the parties’ arguments about
whether the People are required to present expert testimony on the acquisition and use of
marijuana for medical purposes whenever the defendant raises a CUA defense.
VI
Defendant also claims Deputy Zanni should not have been permitted to testify
about the provisions of the CUA and the MMPA. But defendant did not preserve this
claim for review because he did not object at trial to the admissibility of the testimony he
now challenges. (Evid. Code, § 353, subd. (a); People v. Demetrulias (2006) 39 Cal. 4th
1, 19-20.) In the alternative, defendant argues his trial counsel was incompetent for
failing to object to particular portions of Deputy Zanni’s testimony.
To establish ineffective assistance of trial counsel, defendant must prove (1) trial
counsel’s representation was deficient because it fell below an objective standard of
reasonableness under prevailing professional norms, and (2) the deficiency resulted in
prejudice to the defendant. (People v. Maury (2003) 30 Cal. 4th 342, 389 (Maury);
Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L. Ed. 2d 674, 692-693].) If
defendant makes an insufficient showing on either one of these components, his
ineffective assistance claim fails. (People v. Holt (1997) 15 Cal. 4th 619, 703; Strickland
v. Washington, supra, 466 U.S. at p. 687 [80 L.Ed.2d at 693].)
27
The California Supreme Court has said it is particularly difficult to prevail on an
ineffective assistance of counsel claim on direct appeal. (People v. Mai (2013)
57 Cal. 4th 986, 1009 (Mai).) We review trial counsel’s performance with deferential
scrutiny, indulging a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance and recognizing the many choices that
attorneys make in handling cases and the danger of second-guessing an attorney's
decisions. (Maury, supra, 30 Cal.4th at p. 389; Strickland v. Washington, supra, 466
U.S. at p. 689.) Counsel is not ineffective for failing to make a meritless objection or
motion. (People v. Weaver (2001) 26 Cal. 4th 876, 931.) Additionally, “[t]actical errors
are generally not deemed reversible, and counsel’s decisionmaking must be evaluated in
the context of the available facts. [Citation.]” (Maury, supra, 30 Cal.4th at p. 389.) “On
direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record
affirmatively discloses counsel had no rational tactical purpose for the challenged act or
omission, (2) counsel was asked for a reason and failed to provide one, or (3) there
simply could be no satisfactory explanation. All other claims of ineffective assistance are
more appropriately resolved in a habeas corpus proceeding.” (Mai, supra, 57 Cal.4th at
p. 1009.)
“Moreover, prejudice must be affirmatively proved; the record must demonstrate
‘a reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’ [Citation.]” (Maury, supra,
30 Cal.4th at p. 389) It is not enough for defendant to show that errors had some
conceivable effect on the outcome of the case. (People v. Ledesma (1987) 43 Cal. 3d 171,
217.) Defendant must show a reasonable probability of a more favorable result. (Id. at
pp. 217-218; Strickland v. Washington, supra, 466 U.S. at pp. 693-694.)
28
Defendant objects to three parts of Deputy Zanni’s direct examination testimony.
In the first two challenged portions of the deputy’s testimony, the prosecutor asked
Deputy Zanni about mature and immature marijuana plants. The prosecutor asked,
“Q. Now under the [CUA] people may have a certain number of immature plants.
Fair statement?
“A. Yes.
“Q. And how do you as a peace officer distinguish between immature plants and
mature plants?
“A. As a peace officer we use the phrase ‘mature’ and ‘immature’ as being -- that
we can recognize if it’s a female plant or a male plant. If the plants aren’t of [an] age
where we can tell if it is a female plant or a male plant, we call it immature. If we can tell
it is a female plant, we’re going to call it mature because we can tell.
“Q. So under the legislation passed by the California Legislature a person may
possess at least 6 mature or 12 immature plants?
“A. Correct.
“Q. And you as a peace officer differentiated --
“MR. WEBSTER: Your honor, I think that is a misstatement of the law.
“THE COURT: All right, counsel. Can we have a brief side bar?
[¶] . . . [¶]
“THE COURT: All right. Ladies and gentlemen, there is an objection. The Court
is sustaining the objection. But in a chambers conference or just briefly in a side bar it
was agreed that the law itself is somewhat confusing. And rather than try to explain the
law through a witness, the Court will read the section to you that is being discussed here
at the moment. [The trial court then read section 11362.77, subdivisions (a) and (b) to
the jury.]”
A witness’s opinion about what the law provides is inadmissible. (People v.
Torres (1995) 33 Cal. App. 4th 37, 45-46.) “ ‘It is the court and not the witness which
29
must declare what the law is, it not being within the province of a witness, for example,
to testify as to what constitutes larceny or burglary.’ ” (Ibid.) It was improper for
Deputy Zanni to testify about what the CUA permitted. While defense counsel objected
that Deputy Zanni misstated the law, however, the record does not disclose why defense
counsel did not object on the ground that Deputy Zanni cannot testify about what the
CUA provided. Defense counsel could have elected not to object because the trial court
was going to instruct the jury about the provisions of the CUA and that the jury must
follow the trial court’s instructions on the law. We will not second-guess trial counsel’s
tactical decisions.
Additionally, defendant has not shown the result of the trial would probably have
been more favorable to him had his trial counsel objected to Deputy Zanni’s testimony.
The trial court read the provisions of section 11362.77 to the jury, and instructed on the
CUA. The trial court said the jury must follow its instructions on the law. We reject
defendant’s ineffective assistance claim with regard to the above portions of Deputy
Zanni’s testimony.
In the next challenged portion of Deputy Zanni’s testimony, the deputy said, based
on a doctor’s recommendation for two ounces per week, defendant had a
recommendation for six and a half pounds of marijuana per year. Deputy Zanni also said
if Brookbank had a recommendation for half an ounce per week, it would be one and a
half pounds a year. Using the weight the deputy recorded days after the search, the
deputy concluded defendant had six more pounds of marijuana than Dr. Sullivan
recommended. If the deputy used the weight Conrad obtained, however, the deputy said
defendant had two and a half more pounds than recommended.
The following colloquy then occurred:
“Q. [¶] What prevents Mr. Hennig from possessing this extra three to five pounds
of marijuana in November 2006, selling it, then growing or otherwise acquiring more
30
dried, mature, processed, flowered female processed plant and selling that, and repeating
the cycle three or four times a year?
“A. If there wasn’t law enforcement intervention, nothing.”
Defendant argues the latter response is inadmissible opinion about the provisions
of the MMPA. Deputy Zanni did not express an opinion regarding the provisions of the
MMPA in the cited excerpt.
Defendant also claims his trial counsel was ineffective regarding portions of the
deputy’s testimony during cross-examination. In the first challenged portion of the cross-
examination testimony, Deputy Zanni said he learned the definition of a mature
marijuana plant from his training and working with other law enforcement officers. He
said he did not know who came up with the definition he learned or whether there was
any botanical or horticultural support for his definition of a mature marijuana plant.
Defense counsel then asked:
“Q. So this is just essentially a bright line created by law enforcement; correct?
“A. Yes; backed by the legislature, SB 420.
“Q. What did you say?
“A. 11362.77 of the Health and Safety Code, it is sub-section B, I believe, where
it says at minimum somebody can possess 8 ounces of dried marijuana or 6 mature or 12
immature plants. And for the basis of that, that’s why we say a plant is mature when we
can sex it. They can have 6 of the mature plants.
“Q. But the legislature didn’t say that; law enforcement says that.
“A. That’s how I was trained to tell the difference, with that section.
“Q. But there is no definition of what’s a mature plant in SB 420; correct?
“A. No.
“Q. So that is a definition that has been cobbled together by law enforcement for
the -- basically law enforcement purposes. Correct?
“A. For the purposes of that section, yes.”
31
Deputy Zanni’s statement that section 11362.77 permits a person to possess at
minimum eight ounces of dried marijuana or six mature or 12 immature plants was
incorrect. Section 11362.77, subdivision (a) says a qualified patient or primary caregiver
may possess no more than eight ounces of dried marijuana and, in addition, no more than
six mature or 12 immature marijuana plants per qualified patient. The deputy’s opinion
about what the law provides was inadmissible. (People v. Torres, supra, 33 Cal.App.4th
at pp. 45-46.) However, defense counsel could have decided not to object because the
trial court had previously instructed the jury on section 11362.77. Moreover, defendant’s
ineffective assistance claim regarding this portion of Deputy Zanni’s testimony fails
because defendant has not demonstrated prejudice resulting from the lack of objection.
The trial court read the provisions of section 11362.77 to the jury. And as we have
explained, there was convincing evidence defendant possessed marijuana for sale.
Defendant also claims ineffective assistance regarding another portion of Deputy
Zanni’s cross-examination testimony. Deputy Zanni explained that his report did not
differentiate between bud and shake because in 2006, the Siskiyou County Sheriff’s
Department referred to both as “processed marijuana.” Deputy Zanni said that after the
law changed, he reexamined the material seized from defendant’s property in order to
differentiate between bud and shake. The trial court interjected:
“THE COURT: Counsel, may I ask a question, please?
“MR. WEBSTER: Sure.
“THE COURT: There has been a few times that the term ‘shake’ has been used. I
don’t know that it’s ever been defined. Would you ask Detective -- or Deputy Zanni?
“MR. WEBSTER: Q. What’s your definition of shake?
“A. It’s the processed marijuana that is not the colas or the bud portion of the
marijuana plant.
“Q. Basically the leaves and stems?
“A. It’s generally the leaf -- the leafy material.”
32
On redirect examination, Deputy Zanni said marijuana shake is within the definition of
section 11018.
As we have explained, section 11018 defines the term marijuana for purposes of
the CUA defense. Deputy Zanni did not state or imply that shake was not included
within the defense provided under the CUA, as defendant appears to claim. Defendant’s
trial counsel did not render ineffective assistance by failing to object to Deputy’s Zanni’s
testimony on the ground defendant asserts. (People v. Torrez (1995) 31 Cal. App. 4th
1084, 1091 [counsel is not ineffective for failing to make a meritless objection].) Even if
the challenged testimony was inadmissible, defendant has not shown that the failure to
object resulted in prejudice.
Defendant fails to establish inadequate representation and resulting prejudice. His
ineffective assistance claims lack merit.
VII
Defendant also raises claims of prosecutorial misconduct. He says the prosecutor
elicited improper testimony and misstated the law.
In general, we will not review a prosecutorial misconduct claim if the defendant
did not object to the misconduct in the trial court on the ground raised on appeal and ask
the trial court to admonish the jury to disregard the impropriety, unless an objection
would be futile or an admonition would not have cured the harm. (People v. Gonzales
(2012) 54 Cal. 4th 1234, 1275; People v. Kipp (2001) 26 Cal. 4th 1100, 1130 [failure to
object on constitutional grounds at trial forfeits appellate contention that prosecutorial
misconduct violated constitutional protections]; People v. Hill (1998) 17 Cal. 4th 800, 820
(Hill).) “ ‘The purpose of the rule requiring the making of timely objections is remedial
in nature, and seeks to give the [trial] court the opportunity to admonish the jury, instruct
counsel and forestall the accumulation of prejudice by repeating improprieties, thus
avoiding the necessity of a retrial.’ ” (People v. Brown (2003) 31 Cal. 4th 518, 553.)
33
Defendant concedes he did not object to the alleged instances of prosecutorial
misconduct at trial and he did not request an admonishment to the jury. Referring to his
argument in part III of this opinion, defendant claims objecting would have been futile
because the trial court shared the prosecutor’s misunderstanding of the CUA and the
MMPA. We rejected defendant’s claim of trial court error in part III, and here he does
not establish that an objection would have been futile. His claims of prosecutorial
misconduct are forfeited.
Defendant nonetheless argues his trial counsel was ineffective for failing to object
to prosecutorial misconduct. We conclude defendant fails to show his trial counsel’s
representation was deficient.
The record does not support defendant’s claims that the prosecutor committed
misconduct by eliciting improper testimony from Deputy Zanni and by telling the jury
that defendant could not possess more marijuana than Dr. Sullivan had recommended and
that the bud is the only part of the marijuana plant protected under the CUA. We shall
discuss those claims of misstatements by the prosecutor that are factually supported by
the record.
Defendant argues trial counsel was ineffective for failing to object that the
prosecutor misstated the law when he said the method by which a patient consumes
marijuana is irrelevant.
The prosecutor’s statement “there’s no law that suggests that you should care how
it’s consumed” is incorrect in general because the method in which marijuana is
consumed may be relevant to the quantity of marijuana necessary for a patient’s current
medical needs. (See, e.g., Wright, supra, 40 Cal.4th at pp. 87-88.) Considered in
context, however, there is no reasonable likelihood the jury applied the prosecutor’s
remarks in an objectionable fashion because there is no evidence the manner in which
defendant or Brookbank consumed marijuana required they have more marijuana than
is specified in their recommendations. (People v. Dennis (1998) 17 Cal. 4th 468, 522
34
[we must view the statements to which the defendant objects in the context of the
argument as a whole]; People v. Samayoa (1997) 15 Cal. 4th 795, 841 [when the claim
focuses upon comments made by the prosecutor before the jury, the question is whether
there is a reasonable likelihood that the jury construed or applied any of the complained-
of remarks in an objectionable fashion].) Although defendant points out Conrad testified
in another case that approximately four times the amount of marijuana must be eaten in
order to achieve the equivalent effect of smoking it, defendant does not claim similar
evidence was presented in this case. Accordingly, we reject this basis for defendant’s
ineffective assistance claim.
Defendant further argues his trial counsel should have objected when the
prosecutor told the jury the Nemecs were entitled to only six ounces of bud each under
the CUA.
The prosecutor did not make such a statement. The prosecutor did misspeak when
he said the MMPA would give the Nemecs six ounces of marijuana each because section
11362.77, subdivision (a) references “no more than eight ounces of dried marijuana.”
However, there is no reasonable likelihood the jury applied the prosecutor’s statement in
an objectionable fashion. It appears the prosecutor’s incorrect statement was inadvertent
error inasmuch as the prosecutor correctly stated section 11362.77 refers to no more than
eight ounces of dried marijuana per qualified patient in other parts of his closing and
rebuttal remarks. The prosecutor did not suggest the standard for the amount of medical
marijuana the Nemecs may have under the CUA was anything other than the one the
prosecutor repeatedly stated in his closing remarks to the jury: “an amount reasonably
related to the patient’s medical condition.” Additionally, the trial court correctly
instructed the jury on section 11362.77 and the CUA. And the trial court told the jury it
must follow the trial court’s instructions on the law if the attorney’s comments conflict
with those instructions. We presume the jury followed the trial court’s instructions.
(Boyette, supra, 29 Cal.4th at p. 436.)
35
Defendant’s ineffective assistance of counsel claim has no merit.
VIII
Defendant raises additional ineffective assistance of counsel claims, which we
address in turn.
A
Defendant claims his trial counsel was ineffective in agreeing that evidence of
defendant’s medical condition and Brookbank’s medical condition should be excluded.
The prosecutor moved to exclude evidence of the alleged medical conditions,
arguing that the jury was required to accept valid marijuana recommendations and may
not decide for itself if marijuana is appropriate for a patient’s medical condition. The
prosecutor also noted that during voir dire, potential jurors expressed the opinion that
medical marijuana was being abused. He asserted that although they accepted that the
law authorized medical marijuana, the jurors would consider the medical condition. The
prosecutor argued that excluding evidence of defendant’s and Brookbank’s qualifying
medical conditions would avoid the problem presented by the jurors’ comments during
voir dire.
The trial court said that based on the statements by the potential jurors, it also had
concerns that the jurors might disregard a medical marijuana recommendation if they
believed a medical condition was not an appropriate fit for the recommendation. Defense
counsel agreed the real issue was the recommendation. Defense counsel said a properly
framed instruction could adequately address the expressed concerns.5 The trial court
granted the People’s motion to exclude the evidence.
5 Defendant does not claim instructional error regarding Dr. Sullivan’s
recommendations. The parties stipulated that Dr. Sullivan had the legal authority to issue
recommendations for medical marijuana in California, and the doctor issued
recommendations to defendant and Brookbank for specified amounts. The trial court
36
Defendant argues that his trial counsel improperly acquiesced in the exclusion of
Dr. Sullivan’s required testimony. But trial counsel could have reasonably agreed to
exclude evidence of qualifying medical conditions in order to ensure the jury would not
nullify the doctor’s medical marijuana recommendations. Trial counsel’s tactical
decision did not prejudice defendant.
B
In a related argument, defendant claims his trial counsel was ineffective because
he did not call Dr. Sullivan to testify at trial that the amount of marijuana defendant
possessed was reasonable for his medical needs. According to defendant, Dr. Sullivan
testified at an evidentiary hearing held outside the presence of the jury that defendant
switched to eating marijuana, but Dr. Sullivan could have testified at trial that it takes
more marijuana in edible form to meet a patient’s needs.
The record does not disclose why trial counsel elected not to call Dr. Sullivan as a
witness at trial, but trial counsel could have determined, based on the evidentiary hearing
testimony, that Dr. Sullivan could not say it was reasonable for defendant to possess 11.4
pounds or more of marijuana based on defendant’s and Brookbank’s recommendations.
Contrary to defendant’s suggestion, Dr. Sullivan did not say defendant reasonably
needed to consume more than two ounces of marijuana per week for his medical
conditions. Dr. Sullivan testified at the evidentiary hearing that defendant used one to
one and a half ounces of marijuana per week. Defendant ingested marijuana by smoking
it, vaporizing it, and eating it. Dr. Sullivan gave defendant a recommendation for “~ 1-
1½ ounces” of marijuana per week. Dr. Sullivan said “~ 1-1½ ounces” meant roughly or
somewhere in the range of one to one and a half ounces. He said his recommended
dosage would allow two ounces per week, but not five pounds per week.
instructed the jury to accept the stipulations as facts in the case, and the jury could decide
what weight to give those facts.
37
Dr. Sullivan said that after he last saw defendant, defendant ingested marijuana
more by eating it. Defendant consulted with Dr. Sullivan’s partner six days before the
authorities searched defendant’s property. Dr. Sullivan’s partner increased defendant’s
recommended dosage to about two ounces per week. The increased recommended
dosage may have taken into consideration that defendant was eating marijuana more.
The prosecutor objected to Dr. Sullivan testifying about his partner’s opinion, and
the trial court sustained the objection. Defendant does not challenge that ruling. There is
no evidence about what Dr. Sullivan’s partner meant by his recommendation. It was
stipulated, however, that defendant had a recommendation for two ounces of medical
marijuana per week. There is no evidence defendant required more than two ounces of
marijuana per week to meet his medical needs because he consumed marijuana by eating
it more. On this record, we cannot say there could be no rational tactical purpose for trial
counsel to decide not to call Dr. Sullivan as a witness at trial. We reject defendant’s
ineffective assistance claim. (Mai, supra, 57 Cal.4th at p. 1009; Maury, supra, 30 Cal.4th
at p. 389.)
C
Defendant further claims his trial counsel should not have agreed to exclude the
proffered testimony by Brookbank that (a) she knew of a study about the anti-tumor
properties of marijuana, (b) she prepared topical ointments made from marijuana,
(c) after the search she did not ingest marijuana and her tumors increased, and (d) she had
a marijuana recommendation for two ounces per week at the time of the trial.6 Defendant
6 The trial court excluded the following proposed testimony by Brookbank: “I was
privy to a study at the Mayo Clinic that clinically established that topical use of cannibus
[sic] derivatives had an anti-tumor effect. . . . [¶] After the raid and confiscation of our
medicine and firearms, we became virtually bankrupt due to spending money on lawyers
and paying off the Feds to avoid forfeiture of our home and property. We lost 9 llamas to
predators as we had no firearms to scare them away. We had to transport some 30 llamas
to a large animal sanctuary in Montana for their safety, making two trips. [¶] I had been
38
argues the excluded testimony would have suggested a higher dosage for Brookbank was
reasonable and would have explained the extra marijuana in defendant’s possession,
especially if Dr. Sullivan had testified at trial that recommended dosages are approximate
and flexible.
Defendant’s contention -- that his counsel was ineffective for agreeing to exclude
Brookbank’s testimony -- lacks merit because his trial counsel actually opposed the
People’s motion to exclude those portions of Brookbank’s testimony.
In any event, the trial court did not abuse its discretion in excluding the portions of
Brookbank’s proposed testimony. The trial court ruled that her testimony about what
happened after the raid was irrelevant and that any probative value was substantially
outweighed by the probability of undue consumption of time, undue prejudice, confusing
the issues or misleading the jury. With regard to Brookbank, the amount of marijuana
defendant and Brookbank may possess or cultivate under the CUA is the amount
reasonably related to Brookbank’s medical needs at the time of the search. (§ 11362.5,
subd. (d); Kelly, supra, 47 Cal.4th at pp. 1043, 1049; Trippet, supra, 56 Cal.App.4th at
p. 1549.) There is no evidence defendant or Brookbank anticipated the changed medical
needs Brookbank described in the excluded portion of her proposed testimony.
D
Defendant next claims his trial counsel incorrectly argued to the jury that Dr.
Sullivan was the judge of what was reasonable, and it was not up to the jury to decide
that issue. We agree the argument by defendant’s trial counsel misstated the law.
(Trippet, supra, 56 Cal.App.4th at p. 1549.) But defendant fails to demonstrate that
without marijuana, as we were destitute, for approximately a year. We had no medical
insurance and little money. My tumors increased but with no money or insurance, I
neglected my medical care. [¶] I eventually had to have breast cancer surgery in April of
2008, followed by chemotherapy and radiation. I now have a recommendation for 2
ounces of marijuana per week.”
39
prejudice resulted from his counsel’s incorrect statement. The trial court instructed that
the CUA allowed a patient to possess or cultivate marijuana for personal medical
purposes in an amount reasonably related to the patient’s current medical needs, and the
jury determined the facts. The prosecutor repeatedly stated the same CUA standard in his
closing and rebuttal statements. The prosecutor told the jury it decides the amount of
marijuana defendant may have. Dr. Sullivan’s opinion regarding dosage is the only
competent evidence concerning the quantity of marijuana required by defendant and
Brookbank to meet their then-current medical needs.
Defendant’s ineffective assistance of counsel claims fail because defendant has not
shown his trial counsel’s representation was deficient or that the deficiency resulted in
prejudice to defendant. (Maury, supra, 30 Cal.4th at p. 389; Strickland v. Washington,
supra, 466 U.S. at p. 687 [80 L.Ed.2d at pp. 692-693].)
IX
Defendant also claims the trial court erred in admitting his statements to Deputy
Zanni because the statements are the product of custodial interrogation and defendant was
not advised of his Miranda rights.
A
The trial court conducted an evidentiary hearing to decide defendant’s objection
under Miranda. Deputy Zanni was the only witness called at the evidentiary hearing.
Deputy Zanni provided the following account.
The deputy and 10 other armed law enforcement officers executed a search
warrant on defendant’s property. Some officers had automatic weapons. Several officers
carried assault rifles. But no officer drew his gun. Deputy Zanni did not recall anyone
pointing a weapon at defendant.
When the officers arrived, defendant came out of his home and met the officers.
Deputy Zanni and defendant spoke in front of defendant’s home. Deputy Zanni told
defendant he had a search warrant for the property, and the search warrant was for
40
marijuana. Defendant was “kind of ambiguous about not wanting [the officers] there.”
Deputy Zanni asked defendant if anyone else was on the property. Defendant said his
wife was somewhere on the property.
Deputy Zanni did not order defendant to stay. Defendant was not placed in
handcuffs. Deputy Zanni did not tell defendant he was detained, even though Deputy
Zanni intended to detain defendant during the search for officer safety. If defendant had
walked down the lane or gotten into his vehicle, the deputy would not have allowed
defendant to leave.
Deputy Zanni walked 20 to 30 feet away from defendant to speak with two
individuals who were on the property doing construction work. Defendant remained
where he was standing and spoke with other officers. Deputy Zanni spoke with the
construction workers for less than 10 minutes and returned to speak with defendant.
Deputy Zanni asked defendant if he and his wife had medical marijuana
recommendations. Defendant said they did. One or two other deputies were standing
with Deputy Zanni. Deputy Zanni asked defendant if he was growing marijuana and if he
had any processed marijuana on the property. Defendant answered he had 30 marijuana
plants and a small amount of marijuana for personal use. Defendant took Deputy Zanni
to the building where he grew marijuana. One or two other officers accompanied Deputy
Zanni and defendant. The door to the building was locked. Defendant produced a key
and unlocked the door. Deputy Zanni asked defendant what happened to all the
marijuana plants that were grown outdoors. Defendant responded he grew marijuana
with two other people who had recommendations, those persons took their share, and
defendant gave the rest of the marijuana to friends. At about that time, defendant said he
no longer wished to speak with Deputy Zanni until he spoke with an attorney. Deputy
Zanni did not ask defendant further questions. Defendant was not advised of his Miranda
rights.
41
The trial court ruled defendant was not subjected to custodial interrogation. It said
no officer drew his or her firearm, no one told defendant he could not move about the
property, and there were no restraints on defendant’s freedom of movement to the degree
one would associate with a formal arrest. The trial court further found the questions
Deputy Zanni asked defendant were investigatory in nature, designed to elicit information
to help the officers execute the search warrant, rather than to elicit incriminating
statements. Deputy Zanni was permitted to testify about defendant’s statements.
B
“To safeguard the uncounseled individual’s Fifth Amendment privilege against
self-incrimination, the Miranda Court held, [individuals] interrogated while in police
custody must be told that they have a right to remain silent, that anything they say may be
used against them in court, and that they are entitled to the presence of an attorney, either
retained or appointed, at the interrogation.” (Thompson v. Keohane (1995) 516 U.S. 99,
107 [133 L. Ed. 2d 383, 391].) “The purposes of the safeguards prescribed by Miranda are
to ensure that the police do not coerce or trick captive suspects into confessing, [and] to
relieve the ‘ “ inherently compelling pressures ” ’ generated by the custodial setting itself,
‘ “ which work to undermine the individual’s will to resist,” ’ . . . ” (Berkemer v.
McCarty (1984) 468 U.S. 420, 433 [82 L. Ed. 2d 317, 330].) The People may not use
statements obtained in violation of Miranda to establish guilt. (Id. at p. 428-429
[82 L.Ed.2d at p. 328].)
We apply federal standards in determining whether the government elicited a
defendant’s statements in violation of Miranda. (People v. Sims (1993) 5 Cal. 4th 405,
440.) In determining whether a defendant was subjected to custodial interrogation, we
accept the trial court’s resolution of disputed facts and inferences, and its evaluations of
credibility, if supported by substantial evidence. (People v. Thomas (2011) 51 Cal. 4th
449, 476 (Thomas).) We independently determine from the undisputed facts and the facts
properly found by the trial court whether the challenged statement was obtained in
42
violation of Miranda. (People v. Moore (2011) 51 Cal. 4th 386, 395 (Moore); Thomas,
supra, 51 Cal.4th at p. 476.)
Miranda warnings are required only when a defendant is in custody. (Stansbury v.
California (1994) 511 U.S. 318, 322 [128 L. Ed. 2d 293, 298]; Miranda, supra, 384 U.S.
at pp. 444, 478-479 [16 L.Ed.2d at pp. 706, 726].) An interrogation is custodial when the
defendant is placed under arrest or his freedom of movement is restrained to the degree
associated with a formal arrest. (California v. Beheler (1983) 463 U.S. 1121, 1125
[77 L. Ed. 2d 1275, 1279]; People v. Leonard (2007) 40 Cal. 4th 1370, 1400 (Leonard).)
The test for whether a person is in custody is an objective one. (Stansbury v. California,
supra, 511 U.S. at p. 323 [128 L.Ed.2d at p. 298]; Leonard, supra, 40 Cal.4th at p. 1400.)
“When there has been no formal arrest, the question [in determining whether a defendant
is in custody] is how a reasonable person in the defendant’s position would have
understood his situation.” (Moore, supra, 51 Cal.4th at p. 395.) Federal courts have
identified some factors which guide our analysis: (1) where the questioning occurred,
(2) the number of officers present, (3) the degree of physical restraint placed on the
defendant, (4) the length and manner of the questioning, and (5) whether the defendant
was told he did not need to answer the questions. (United States v. Crooker (1st Cir.
2012) 688 F.3d 1, 11; United States v. Hinojosa (6th Cir. 2010) 606 F.3d 875, 883.) The
California Supreme Court has similarly stated that all the circumstances of the
interrogation are relevant in determining whether a defendant is in custody for purposes
of Miranda, including the location, length, and form of the interrogation and whether any
indicia of arrest were present. (Moore, supra, 51 Cal.4th at p. 395; see People v. Lopez
(1985) 163 Cal. App. 3d 602, 608 [listing the following indicia of custody for Miranda
purposes: (1) whether the suspect has been formally arrested; (2) absent formal arrest,
the length of the detention; (3) the location; (4) the ratio of officers to suspects; and (5)
the demeanor of the officer, including the nature of the questioning]; People v. Forster
(1994) 29 Cal. App. 4th 1746, 1753 [same].)
43
In general, we do not consider the subjective views harbored by the police officer
and the person being questioned. (Stansbury v. California, supra, 511 U.S. at p. 323
[128 L.Ed.2d at p. 298].) An investigating officer’s suspicions or beliefs are relevant to
our inquiry only if the suspicions or beliefs are communicated to the defendant and would
have affected how a reasonable person in the defendant’s position would perceive his
freedom to leave or if such evidence is relevant in testing the credibility of the officer’s
account of what happened during the interrogation. (Id. at pp. 323-325 [128 L.Ed.2d at
pp. 298-300]; People v. Stansbury (1995) 9 Cal. 4th 824, 830.)
Applying these principles and considering the totality of the surrounding
circumstances, we conclude defendant was not in custody at the time he spoke with
Deputy Zanni. It is true that Deputy Zanni did not tell defendant he was free to leave or
that he did not need not answer questions. However, Deputy Zanni’s questioning ceased
when defendant said he no longer wished to speak with the deputy. In addition, Deputy
Zanni spoke with defendant outside defendant’s home. Questioning that takes place in
the familiarity of a person’s own home tends to be less intimidating than questioning in
unfamiliar surroundings like a police station. (United States v. Crooker, supra, 688 F.3d
at p. 11; United States v. Hinojosa, supra, 606 F.3d at p. 883; United States v. Bassignani
(9th Cir. 2009) 575 F.3d 879, 884-887 [interview took place at the defendant’s
workplace]; United States v. Axsom (8th Cir. 2002) 289 F.3d 496, 502.) The questioning
was not protracted. There is no indication any officer restrained defendant, blocked his
way, or isolated him before he made the challenged statements to Deputy Zanni.
Brookbank joined Deputy Zanni and defendant at one point. Defendant was not placed in
handcuffs. Deputy Zanni did not tell defendant he would be detained, and defendant was
not placed under arrest.
Although 11 armed law enforcement officers entered defendant’s property to
execute the search warrant, most of the officers dispersed to search defendant’s multiple-
acre property. No officer had his or her firearm drawn. And only one or two other
44
officers were around when Deputy Zanni questioned defendant. (United States v.
Crooker, supra, 688 F.3d at pp. 4, 11-12 [four to eight armed law enforcement officers
executed a search warrant at the defendant’s home, but no more than two agents
questioned the defendant at one time]; United States v. Axsom, supra, 289 F.3d at p. 502
[nine agents participated in the execution of a search warrant at the defendant’s home but
only two agents questioned the defendant].)
No one stopped defendant when he walked to the shop with Deputy Zanni.
According to Deputy Zanni, defendant was “very interactive” with the deputy. There is
no testimony that the questioning by Deputy Zanni was accusatory in tone. There is also
no evidence Deputy Zanni intimidated, coerced, or deceived defendant into answering
questions such that a reasonable person under the circumstances would have felt
compelled to remain and answer the deputy’s questions. Although law enforcement
officers entered defendant’s property to execute a search warrant, and although Deputy
Zanni may have believed crimes had been committed on defendant’s property, such
circumstances do not mandate a determination that defendant was in custody. (See, e.g.,
United States v. Crooker, supra, 688 F.3d 1; United States v. Bassignani, supra, 575 F.3d
879; United States v. Axsom, supra, 289 F.3d 496.) Deputy Zanni’s unexpressed intent or
belief has no bearing on the question of whether defendant was in custody. (Stansbury v.
California, supra, 511 U.S. at p. 326 [128 L.Ed.2d at p. 301]; Berkemer v. McCarty,
supra, 468 U.S. at p. 442 [82 L.Ed.2d at p. 336]; People v. Stansbury, supra, 9 Cal.4th at
p. 830 & fn. 1.)
We do not consider whether Deputy Zanni “interrogated” defendant for purposes
of Miranda because defendant was not in custody when he made the challenged
statements. Defendant has not shown the trial court erred in denying his motion to
exclude his statements to Deputy Zanni.
45
X
Defendant contends the judgment must be reversed because the cumulative effect
of the errors by the trial court, his trial counsel, and the prosecutor prejudiced him.
“[A] series of trial errors, though independently harmless, may in some
circumstances rise by accretion to the level of reversible and prejudicial error.” (Hill,
supra, 17 Cal.4th at pp. 844-845.) This is not such a case. Having concluded that
defendant’s claims lack merit, we also reject his claim of cumulative prejudice.
DISPOSITION
The judgment is affirmed.
/S/
Mauro, J.
We concur:
/S/
Blease, Acting P. J.
/S/
Duarte, J.
46