IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S128442
v.
) Ct.App.
4
G031061
SHAUN ERIC WRIGHT,
Orange
County
Defendant and Appellant.
Super. Ct. No. 01WF2416
The Compassionate Use Act of 1996 (the CUA) ensures that Californians
who obtain and use marijuana for specified medical purposes upon the
recommendation of a physician are not subject to certain criminal sanctions.
(Health & Saf. Code, § 11362.5.)1 Specifically, the CUA provides an affirmative
defense to the crimes of possessing marijuana (§ 11357) and cultivating marijuana
(§ 11358) for physician-approved personal medical purposes. (§ 11362.5, subd.
(d).) However, the CUA does not provide a defense to the crime of transporting
marijuana. A conflict arose in the Court of Appeal regarding whether and under
what circumstances an implied defense to this offense existed under the statute.
(Compare People v. Trippet (1997) 56 Cal.App.4th 1532 with People v. Young
(2001) 92 Cal.App.4th 229.) In this case, defendant Shaun Eric Wright was
convicted of transporting marijuana after the trial court declined to instruct the
1 All further undesignated statutory references are to this code.
1
jury that the CUA provided a defense to that charge. The Court of Appeal,
concluding the refusal was prejudicial error, reversed. We granted review to
resolve the issue.
While this case was pending, however, the Legislature enacted the Medical
Marijuana Program (MMP), one purpose of which was to address issues not
included in the CUA so as to promote the fair and orderly implementation of the
CUA. (§ 11362.7 et seq.) Among its provisions, the MMP specifically provides
an affirmative defense to the crime of transporting marijuana by individuals
entitled to the protections of the CUA. (§ 11362.765.) The MMP has been held to
apply retroactively to cases pending at the time of its enactment. (People v.
Urziceanu (2005) 132 Cal.App.4th 747; People v. Frazier (2005) 128 Cal.App.4th
807.)
Defendant contends that the MMP applies in this case and provides an
alternative ground to affirm the judgment of the Court of Appeal. We agree that
the MMP applies retroactively to cases pending at the time of its enactment and,
therefore, to the present case. We conclude, moreover, that, because defendant
presented sufficient evidence to entitle him to an instruction on the CUA as an
affirmative defense to the transportation charge, it was error for the trial court to
have refused this instruction. Nonetheless, contrary to the Court of Appeal, for the
reasons set forth below, we conclude further that the instructional error was
harmless.
FACTS
On September 20, 2001, Huntington Beach police officers received a tip
that a vehicle at a car wash smelled as if it contained marijuana and that,
specifically, a backpack in the vehicle “reeked of marijuana.” Officer Mark
Armando and two other officers, including Sergeant Henry Cuadras, responded to
the call. Officer Armando stopped defendant near the car wash as defendant was
2
driving away in his black Toyota pickup truck. The driver’s side window was
rolled down. As he approached the truck, Armando noticed a strong odor of
marijuana coming from within the truck and observed a backpack on the seat next
to defendant. Armando told defendant about the tip and asked him if there was
marijuana in his truck. Defendant said no. Armando had defendant step outside
the truck. Defendant got out of the truck holding the backpack. Armando again
asked defendant whether there was any marijuana in the truck and defendant again
said no.
Sergeant Cuadras conducted a patdown search of defendant that yielded a
small baggie of marijuana in defendant’s pants pocket. Armando searched
defendant’s backpack and found six small baggies of marijuana, two large bags of
marijuana and an electronic scale. The small baggies ranged in weight from 4.8
grams to 9.7 grams while the large bags of marijuana each weighted 30.6 grams,
or slightly more than an ounce. A search of defendant’s truck yielded a large bag
of marijuana concealed in a storage compartment behind the passenger seat. The
bag weighed 469.4 grams, or slightly more than a pound. No devices for smoking
marijuana were found in the truck or on defendant’s person.
Defendant was charged by information with possessing marijuana for sale
(§ 11359), transporting marijuana (§ 11360, subd. (a)), and driving on a suspended
or revoked license (Veh. Code, § 14601.1, subd. (a).)2
Defendant’s trial commenced on May 1, 2002. Both Officer Armando and
Sergeant Cuadras testified that in their opinion defendant possessed the marijuana
to sell, not for his personal use. They based their opinions on the quantity of
2 Defendant pled guilty to the Vehicle Code charge before trial.
3
marijuana in defendant’s possession, the manner in which it was packaged and
concealed in his vehicle, and the presence of the scale in his backpack.
Following Officer Armando’s testimony, the trial court conducted a hearing
pursuant to Evidence Code section 402 on defendant’s request for a jury
instruction based on the CUA.3 Dr. William Eidelman testified on defendant’s
behalf that he had recommended that defendant use marijuana to alleviate his
medical problems. Eidelman testified that defendant first consulted him on June 7,
2001. At the consultation, defendant brought medical records that pertained to a
shoulder injury he had suffered as the result of a bicycle accident in 1994. He
complained of chronic pain in his legs and shoulder, abdominal problems from a
stomach parasite, and emotional distress. After performing a physical examination
of defendant, Dr. Eidelman wrote a letter approving a self-regulating dose of
marijuana to relieve defendant’s chronic pain and to treat the decreased appetite he
3 The instruction defendant requested was CALJIC No. 12.14.1 (1999 rev.) which
stated: “A person is not guilty of the unlawful [possession] [or] [cultivation] [or]
[transportation] of marijuana when the acts of [defendant] [a primary caregiver]
are authorized by law for compassionate use. [¶] [A ‘primary caregiver’ means
the individual designated by [the person exempted] . . . who is consistently
assigned responsibility for the housing, health, or safety of that person.] [¶] The
defendant has the burden of proving by a preponderance of the evidence all the
facts necessary to establish the elements of this defense, namely: [¶] 1. [The
defendant] . . . suffered from a medical condition where use of marijuana as a
treatment was medically appropriate; [¶] 2. [The defendant’s] . . . use of
marijuana was recommended by a physician who had determined orally or in
writing that the [defendant’s] [patient’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 promotes
relief; and [¶] [[3.] [¶] The amount of marijuana [possessed] [or] [cultivated] was
reasonably related to [the defendant’s] . . . then current medical needs [.]] [; or]
[¶] [[3.] [¶] The amount of marijuana transported at the time of defendant’s
arrest was, considering the quantity, method, timing and distance of the
transportation, reasonably related to [the defendant’s] . . . then medical needs.]”
4
experienced as a result of his stomach problems. Defendant told Dr. Eidelman
that he preferred eating marijuana to smoking it.
Dr. Eidelman saw defendant again on November 30, 2001, following
defendant’s arrest. He and Dr. Eidelman discussed the fact that defendant
preferred to eat marijuana, a practice that required a larger amount of marijuana
than smoking it to achieve the same effect. Defendant told Dr. Eidelman that,
when he ate marijuana, a pound of it usually lasted him two to three months. At
defendant’s request, Dr. Eidelman wrote a letter on his behalf approving
defendant’s use of a pound of marijuana every two to three months. At the
hearing, Eidelman testified that a pound every two or three months was consistent
with the manner in which defendant stated that he ingested marijuana.
Defendant also testified at the evidentiary hearing. Defendant described
injuries to his leg, collarbone and shoulder and a stomach ailment that caused him
severe chronic pain. His shoulder injury prevented him from sleeping through the
night and had forced him to give up his employment as a carpenter. Defendant
also testified that his stomach ailment caused him to suffer nausea and chronic
diarrhea and had also affected his appetite.
At the conclusion of the evidentiary hearing, the trial court ruled that the
CUA did not apply “in a transportation case where we have one pound, three
ounces of marijuana.” The trial court also rejected defendant’s request for a CUA
instruction with regard to the possession for sale count. However, the court
allowed the defense to present evidence of medical use as proof that defendant
possessed the marijuana for personal medical use and not to sell.
At the resumed trial, Dr. Eidelman testified that defendant’s use of a pound
of marijuana over a two- or three-month period was reasonable. Dr. Eidelman
based his approval of defendant’s use of marijuana on defendant’s medical
5
records, a physical examination of defendant and conversations with defendant
regarding his preference to eat marijuana.
Defendant testified that the marijuana he possessed was for his own
personal medical use and not to sell. He testified that he had been smoking
marijuana since 1991 to alleviate the chronic pain he experienced as a result of his
various injuries. He explained that, while he smoked about an eighth of an ounce
of marijuana a day, he preferred to eat it, and that the pound of marijuana found in
his vehicle was for cooking. He also testified that the pound of marijuana would
yield eight ounces for cooking.
Defendant testified further that, on the morning of his arrest, he had
purchased the marijuana found by the police packaged in the manner in which
they found it. He explained that he had not purchased the marijuana in a single
large bag because it had different potencies and was used for different purposes,
like cooking as opposed to smoking. Defendant testified that after purchasing the
marijuana, he went to get the oil in his truck changed and his truck washed and
was on his way home when the police stopped and arrested him. Defendant did
not explain why he had a scale in his possession when he was arrested.
Before closing arguments, the defense renewed its request to give a
compassionate use defense jury instruction. The trial court again declined to give
the instruction.
After the jury was instructed, but before closing arguments, the judge
received several questions from individual members of the jury. Among those
questions was “Is marijuana for medicinal purposes acceptable with the law?” and
“Can a doctor legally prescribe marijuana?” The court declined to answer these
questions, but instead told the jury to listen to closing arguments of both counsel
and “if you still have questions after argument, you can submit the questions again
6
and I’ll go ahead and do my very best to answer your questions. But . . . it may
very well be that the attorneys will answer these questions in their argument.”
At the outset of his closing argument, the prosecutor stated: “[I]s a medical
recommendation from some sort of doctor a defense to any of these charges? No,
it is not. No defense.” Toward the end of his argument, he returned to this point:
“Is that a defense? Because any type of doctor recommends that he use it? No,
it’s not, not for any of those charges. So, don’t fall for that either.”
Defense counsel argued that the marijuana found in defendant’s vehicle
was for his personal use to alleviate the pain he experienced from his various
ailments, thus negating any intent to sell marijuana. “When you look at the
circumstances overall, you will find that he was not intending to sell that
marijuana. He had certain conditions. Whether you agree with the treatment or
whether it was really necessary or not is really not the point. The point is that he
felt that way. The doctor felt that way. And that’s what he was using it for.”
Defense counsel also argued further that Dr. Eidelman’s testimony regarding the
efficacy of marijuana for medical use, and the defendant’s use of it to alleviate his
various ailments, was uncontroverted by other expert testimony. “We don’t have
any opposing expert saying that the doctor’s opinion or testimony is just
completely out of whack or in violation of some law. We have no opposing expert
testimony on that issue.”
The jury was instructed, among other things, that to convict defendant of
possession for sale of marijuana it must find beyond a reasonable doubt that he
possessed the marijuana with the specific intent to sell the drug. The jury was
further instructed that, if it was not convinced beyond a reasonable doubt that he
possessed the marijuana to sell, it could nonetheless convict him of the lesser
included offense of simple possession of marijuana, a misdemeanor.
7
The jury convicted defendant of both possessing marijuana for sale and
transporting marijuana.
At defendant’s sentencing hearing, the trial court acknowledged that “we
should have had a compassionate use instruction.”4 Defendant appealed. A
divided panel of the Court of Appeal reversed his conviction on both the
transportation and possession for sale counts based on the trial court’s failure to
give a CUA instruction.
We granted the Attorney General’s petition for review.
DISCUSSION
I.
Adopted by the voters on November 5, 1996, the purpose of the CUA is
three-fold: “(A) To 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 . . . . [¶] (B) To ensure
that patients and their primary caregivers who obtain and use marijuana for
medical purposes upon the recommendation of a physician are not subject to
criminal prosecution or sanction. [¶] (C) To encourage the federal and state
governments to implement a plan to provide for the safe and affordable
distribution of marijuana to all patients in medical need of marijuana.”
(§ 11362.5, subd. (b)(1).)5
4 The particular instruction that defendant requested was later disapproved by this
court to the extent that it required the defendant to establish the defense by a
preponderance of the evidence. Instead, the defendant need only raise a
reasonable doubt as to facts that would support a CUA defense. (People v. Mower
(2002) 28 Cal.4th 457, 464.)
5 Both sides agree that the Supreme Court’s decision in Gonzales v. Raich (2005)
545 U.S. ___ [125 S.Ct. Rptr. 2195, 162 L.Ed. 1] wherein the court held that
(footnote continued on next page)
8
The CUA provides a defense for physician-approved possession and
cultivation of marijuana: “Section 11357, relating to the possession of marijuana,
and section 11358, relating to the cultivation of marijuana, shall not apply to a
patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana
for the personal medical purposes of the patient upon the written or oral
recommendation or approval of a physician.” (§ 11362.5, subd. (d).)
Almost immediately after the CUA became effective, questions arose about
whether it provided a defense to marijuana-related offenses not specified in its
text, including the crime of transporting marijuana. (§ 11360.) In People v.
Trippet, supra, 56 Cal.App.4th at page 1550, the reviewing court squarely
confronted this question. In that case, the defendant was convicted of transporting
marijuana and possessing marijuana. While her appeal was pending, the voters
adopted the CUA. The defendant argued that the CUA applied retroactively and,
as such, provided a defense to both charges of which she was convicted. (Id. at
p. 1544.)
Preliminarily, the court found that the CUA applied retroactively, a point
the Attorney General conceded. “As the Attorney General concedes, absent
contrary indicia, ‘the Legislature is presumed to have extended to defendants
whose appeals are pending the benefits of intervening statutory amendments
which decriminalize formerly illicit conduct [citation], or reduce the punishment
for acts which remain unlawful. [Citations.] No different rule applies to an
(footnote continued from previous page)
federal criminal sanctions may be applied to individuals with respect to the
cultivation and possession of marijuana notwithstanding the CUA is not
implicated in this case because it involves the applicability of the CUA to state
criminal charges only.
9
affirmative defense to the crime for which a defendant was convicted, which
defense was enacted during the pendency of her appeal.’ Proposition 215 contains
no savings clause and so, as the Attorney General further concedes, ‘it may
operate retrospectively to defend against criminal liability, in whole or part, for
some who are appealing convictions for possessing, cultivating and using
marijuana.’ [¶] We agree with this assessment.” (Id. at pp. 1544-1545.)
But Trippet concluded that the voters did not intend for the CUA to provide
a defense to any marijuana-related offense not specifically named in the initiative,
including transporting marijuana. (People v. Trippet, supra, 56 Cal.App.4th at
p. 1550.) Nonetheless, the court acknowledged that “practical realities dictate that
there be some leeway in applying section 11360 in cases where a Proposition 215
defense is asserted to companion charges. The results might otherwise be absurd.”
(Ibid.)
As the court pointed out, “the voters could not have intended that a dying
cancer patient’s ‘primary caregiver’ could be subject to criminal sanctions for
carrying otherwise legally cultivated and possessed marijuana down a hallway to
the patient’s room.” (People v. Trippet, supra, 56 Cal.App.4th at p. 1550.) In
reaching this conclusion, the court declined the defendant’s invitation “to interpret
the statute as a sort of ‘open sesame’ regarding the possession, transportation and
sale of marijuana” whereby “transportation by any means and in any quantity
desired is now also completely protected.” (Id. at p. 1546 & fn. 8.) Instead, the
court held that an implied defense to a section 11360 charge should apply where
“the quantity transported and the method, timing and distance of the transportation
are reasonably related to the patient’s current medical needs.” (56 Cal.App.4th at
pp. 1550-1551.) Concluding that there was a “remote” possibility that the
defendant could meet this test, notwithstanding the fact that she had been arrested
with two pounds of marijuana in her car, the court remanded the case to the trial
10
court to determine if an implied defense applied to the transportation charge. (Id.
at p. 1551.)
People v. Young, supra, 92 Cal.App.4th 229, revisited the issue of whether
the CUA provides an implied defense to a charge of transporting marijuana. In
Young, the defendant was stopped in his car and found to be in possession of less
than five ounces of marijuana. He provided the police officer who stopped him
with a written recommendation from his physician authorizing his use of
marijuana for arthritis. (Id. at p. 232.) Nonetheless, he was charged with and
convicted of transporting marijuana. On appeal, he argued that the trial court
erred by failing to instruct the jury on a mistake of fact defense, that is, that he
mistakenly believed the marijuana he was transporting was medicine. The Court
of Appeal “rejected[ed] this argument because defendant was under an
inexcusable mistake of law that the Compassionate Use Act provided him with a
defense to transportation of marijuana.” (Id. at p. 233.)
Young agreed with Trippet that the CUA did not provide a defense to a
charge of transporting marijuana but noted, somewhat critically, that “[d]espite the
plain language of the statute” Trippet had found a limited implied defense to that
offense. (People v. Young, supra, 92 Cal.App.4th at p. 236.) The court asserted
that it “need not decide whether we agree with the Trippet court that incidental
transportation of marijuana from the garden to a qualifying patient may implicitly
fall within the safe haven created by the Compassionate Use Act. This case
[involves] . . . the transportation of marijuana in a vehicle. That kind of
transportation is not made lawful by the Compassionate Use Act.” (Id. at p. 237.)
While, ostensibly, Young found it was unnecessary for it to explicitly agree
or disagree with Trippet, its categorical conclusion that transporting marijuana in a
vehicle is not protected by the CUA was directly contrary to Trippet. In Trippet,
the court held that the defendant, who was arrested while transporting two pounds
11
of marijuana in her car, might nonetheless be able to establish a CUA defense to
transportation if she could meet the test set out in Trippet that the “quantity
transported and the method, timing and distance of the transportation are
reasonably related to the patient’s current medical needs.” (People v. Trippet,
supra, 56 Cal.App.4th at p. 1551.) That broad test itself is irreconcilable with the
categorical statement in Young that transporting marijuana in a vehicle “is not
made lawful by the Compassionate Use Act.” (People v. Young, supra, 92
Cal.App.4th at p. 237.)
In the case before us, the Court of Appeal concluded that Trippet, and not
Young, was the better reasoned decision.6 Applying Trippet’s quantity, method,
timing, and distance standard, the Court of Appeal concluded that defendant had
introduced sufficient evidence to support a CUA instruction and that the failure of
the trial court to have granted his request for the instruction was reversible error.
While the case was pending before this court, however, the Legislature
stepped in and addressed this issue directly by enacting the MMP in which it
extended a CUA defense to a charge of transporting marijuana where certain
conditions are met. (§ 11362.765 et seq.) Because we conclude that the MMP
applies to this case and requires reversal, it is unnecessary to resolve the split of
authority between Trippet and Young. In any event, enactment of the MMP has
rendered moot the conflict between these decisions as to whether the CUA
provides a defense to a charge of transportation of marijuana.7 We now turn to the
6 Notably, in the Court of Appeal the Attorney General also agreed that Trippet
was correct, a position he reiterates here. The Attorney General simply disagrees
that the application of the Trippet standard in this case requires reversal.
7 As both sides acknowledged at argument, however, Trippet’s test for whether
the defense applies in a particular case survived the enactment of the MMP and
remains a useful analytic tool to the extent it is consistent with the statute.
12
question of whether defendant has met the conditions set forth in the MMP to
assert a CUA defense to a charge of transporting marijuana.
II.
We begin by examining the provisions of the MMP relevant to the issue
presented in this case. “Our role in construing a statute is to ascertain the intent of
the Legislature so as to effectuate the purpose of the law. [Citation.] Because the
statutory language is generally the most reliable indicator of that intent, we look
first at the words themselves, giving them their usual and ordinary meaning.”
(Alford v. Superior Court (2003) 29 Cal.4th 1033, 1040.) In construing the MMP,
we are also aided by the Legislature’s extensive declaration of intent.
The MMP was introduced in 2003 as Senate Bill No. 420 (2003-2004 Reg.
Sess.). In uncodifed portions of the bill the Legislature declared that, among its
purposes in enacting the statute, was to “[c]larify the scope of the application of
the act and facilitate the prompt identification of qualified patients and their
designated primary caregivers in order to avoid unnecessary arrest and prosecution
of these individuals and provide needed guidance to law enforcement officers.”
(Stats. 2003, ch. 875, § 1, subd. (b)(1).) Additionally, the Legislature declared that
a further purpose of the legislation was to “address additional issues that were not
included within the act, and that must be resolved in order to promote the fair and
orderly implementation of the act.” (Id., § 1, subd. (c).)
To achieve the goal of “facilitat[ing] the prompt identification of qualified
patients and their designated primary caregivers,” the Legislature established a
voluntary program for the issuance of identification cards to such qualified
patients. (§ 11362.71 et seq.) The Legislature extended certain protections to
individuals who elected to participate in the identification card program. Those
protections included immunity from prosecution for a number of marijuana-related
offenses that had not been specified in the CUA, among them transporting
13
marijuana. “Subject to the requirements of this article, the individuals specified in
subdivision (b) shall not be subject, on that sole basis, to criminal liability under
Section 11357 [possession of marijuana], 11358 [cultivation of marijuana], 11359
[possession for sale], 11360 [transportation], 11366 [maintaining a place for the
sale, giving away or use of marijuana], 11366.5 [making available premises for the
manufacture, storage or distribution of controlled substances], or 11570
[abatement of nuisance created by premises used for manufacture, storage or
distribution of controlled substance].” (§ 11362.765, subd. (a).) By authorizing a
CUA defense to these other marijuana-related offenses, the Legislature furthered
its goal of “address[ing] additional issues that were not included within the act,
and that must be resolved in order to promote the fair and orderly implementation
of the act.” (Stats. 2003, ch. 875, § 1, subd. (c).)
The Legislature did not limit the availability of a CUA defense to these
other marijuana-related offenses only to individuals who chose to participate in the
card identification program. Rather, in subdivision (b) of section 11362.765, the
Legislature defined the individuals exempt from criminal liability for the offenses
designated in subdivision (a) as including “(1) A qualified patient or a person with
an identification card who transports or processes marijuana for his or her own
personal medical use.” (§ 11362.765, subd. (b); italics added.)
The MMP defines the term “qualified patient” as “a person who is entitled
to the protections of Section 11362.5, but who does not have an identification card
issued pursuant to this article.” (§ 11362.7, subd. (f); see also § 11362.71, subd.
(f) [“It shall not be necessary for a person to obtain an identification card in order
to claim the protections of section 11362.5”].) Section 1136.5 is, of course, the
CUA. A person is entitled to the protections of the CUA if that person is a
“seriously ill” Californian whose use of marijuana “has been recommended by a
physician who has determined that the person’s health would benefit from the use
14
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).)8
Thus, under the MMP, either the holder of an identification card holder or a
“qualified patient” – someone entitled to the protections of the CUA, but who does
not have an identification card – may assert the CUA as a defense to a charge of
transporting marijuana. Defendant maintains that he is a “qualified patient” for
purposes of the MMP and should be given the benefit of the defense it provides to
a charge of transporting marijuana. To reach his claim, however, we must first
determine whether the MMP applies retroactively to pending cases. We conclude
that it does.
The retroactivity of the CUA itself was, as previously noted, firmly
established by People v. Trippet, supra, 56 Cal.App.4th 1532. As the court there
explained, the new defenses to possessing and cultivating marijuana extended by
the CUA to individuals who use marijuana for medicinal purposes applied to cases
pending on appeal. Trippet based its analysis on decisions from this court: “The
clearest precedent on point is People v. Rossi (1976) 18 Cal.3d 295, 299-302 [134
Cal.Rptr. 64, 555 P.2d 1313]. The defendant in that case had been convicted of
violating the pre-1976 version of Penal Code section 288a by committing various
sexual acts during the filming of what the court euphemistically termed ‘low-
budget movies.’ (18 Cal.3d at p. 298.) After her conviction, and during the period
that conviction was on appeal, the Legislature amended section 288a to
decriminalize the acts performed by the defendant. The Supreme Court, relying
8 The MMP contains its own definition of “serious medical condition” that is
somewhat broader than that set forth in the CUA. (§ 11362.7, subd. (h).)
15
heavily on its decade-earlier decision in In re Estrada (1965) 63 Cal.2d 740 [48
Cal.Rptr. 172, 408 P.2d 948], ruled that the amendment could be applied to
preclude criminal sanctions for the defendant’s acts. The precise holding in
Estrada was that a superseding reduction in the punishment accorded a particular
violation could be applied retroactively; the Rossi court, however, had no
difficulty applying that principle to the slightly different facts before it. It held
that ‘. . . the common law principles reiterated in Estrada apply a fortiori when
criminal sanctions have been completely repealed before a criminal conviction
becomes final.’ (People v. Rossi, supra, 18 Cal.3d at p. 301; see also People v.
Babylon (1985) 39 Cal.3d 719, 722 [216 Cal.Rptr. 123, 702 P.2d 205] [‘. . . absent
a saving clause, a criminal defendant is entitled to the benefit of a change in the
law during the pendency of his appeal . . .’].) [¶] This authority makes clear that
Proposition 215 may be applied retroactively to provide, if its terms and the
applicable facts permit, a defense to appellant.” (People v. Trippet, supra, 56
Cal.App.4th at p. 1545.)
Recent decisions of the Court of Appeal have similarly and unanimously
concluded that the MMP should be retroactively applied. In People v. Urziceanu,
supra, 132 Cal.App.4th 747, the court considered whether the MMP’s extension of
a CUA defense to the charge of cultivating marijuana provided the defendant in
that case with a defense to a charge of conspiracy to possess marijuana. The
defendant claimed that the conspiracy count arose out of his involvement in the
collective cultivation and distribution of medical marijuana. The court observed
that the MMP “represents a dramatic change in the prohibitions on the use,
distribution, and cultivation of marijuana for persons who are qualified patients or
their primary caregivers and fits the defense defendant attempted to present at
trial. Its specific itemization of the marijuana sales law indicates it contemplates
the formation and operation of medicinal marijuana cooperatives that would
16
receive reimbursement for marijuana and the services provided in conjunction
with the provision of that marijuana.” (Id. at p. 785.)
On the issue of retroactivity of the MMP, the court, after citing Trippet’s
conclusion regarding the retroactivity of the CUA declared: “The same reasoning
applies here. . . . [T]he Medical Marijuana Program Act sets forth the new
affirmative defense allowing collective cultivation of marijuana, expands the
defense to penal sections not identified by the Compassionate Use Act, and
contains no saving clause. These facts lead us to the conclusion that this law must
also be retroactively applied.” (People v. Urziceanu, supra, 132 Cal.App.4th at p.
786; accord, People v. Frazier, supra, 128 Cal.App.4th at p. 826 [“To the extent
that the Medical Marijuana Program sets forth new affirmative defenses, expands
the defense identified by the Compassionate Use Act, and contains no savings
clause, that law must be retroactively applied”].) We agree with the analysis set
forth in Trippet, Urziceanu and Frazier and conclude, therefore, that the MMP
must be retroactively applied.
“That, however, does not end the inquiry. Retroactive application of a
defense is only required ‘if its terms and the applicable facts permit a defense to’
defendant.” (People v. Frazier, supra, 128 Cal.App.4th at p. 826, quoting People
v. Trippet, supra, 56 Cal.App.4th at p. 1545.) Here, the preliminary question is
whether there was substantial evidence that defendant is “a qualified patient” as
that term is defined in section 11362.7, subdivision (f) as “a person who is entitled
to the protections of Section 11362.5, but who does not have an identification card
issued pursuant to this article.” Only upon such an evidentiary showing would
defendant be entitled to a CUA defense instruction. (People v. Trippet, supra, 56
Cal.App.4th at p. 1551, fn. 17 [“Because the statute provides a limited affirmative
defense, the burden is, of course, on the defendant to raise the defense and prove
its elements”]; cf. People v. Mower, supra, 28 Cal.4th at p. 475 [trial court’s
17
failure to instruct that defendant was primary caregiver under section 11362.5,
subd. (d) was not error because “such an instruction would not have been
supported by substantial evidence”].) The evidence presented by defendant at his
trial was sufficient to warrant the instruction of the defense. Chronic pain is one
of the conditions for which the CUA authorizes use of marijuana. (§ 11362.5,
subd. (b)(1)(A).) The testimony of Dr. Eidelman, if believed, would satisfy the
statutory requirement of a physician recommendation.
The next question is whether a defense set forth in the MMP was available
to defendant. As noted, the MMP specifically provides that a qualified patient
shall not be criminally liable for transporting marijuana “for his or her own
personal medical use.” (§ 11362.765, subd. (b)(1).) In this case, defendant was
charged with transporting marijuana. He presented evidence at trial that he had
purchased the marijuana found in his car on the morning of his arrest for his own
personal medical use and was in the process of transporting the marijuana to his
home when he was arrested. This testimony was sufficient to merit instruction on
the defense to a charge of transporting marijuana set forth in the MMP.
Notwithstanding the Attorney General’s concession in Trippet that the
CUA, because it extended a new affirmative defense, applied retroactively (People
v. Trippet, supra, 56 Cal.App.4th at pp. 1544-1545), the Attorney General rejects
retroactive application of the MMP here for three reasons; first, defendant failed to
identify himself to police as a medicinal user of marijuana; second, the amount in
his possession, slightly over a pound, was in excess of the eight ounces permitted
to a qualified patient under section 11362.77, subdivision (a); and, third, the jury’s
implied finding that defendant possessed the marijuana for sale negates a claim
that he was transporting it for his personal use only. These arguments, however,
confuse the retroactive application of the defense with its efficacy under the
18
particular facts of this case, and on the retroactivity question they are not
persuasive.
The Attorney General fails to cite any provision of the MMP that supports
his assertion that a defendant must identify himself as a medical user of marijuana
before he or she can assert a CUA defense to a charge of transporting marijuana.
To the contrary, the relevant provisions of the MMP contain no such requirement.
Section 11362.7 defines a qualified patient as “a person who is entitled to the
protections of [the CUA], but who does not have an identification card issued
pursuant to this article.” (§ 11362.7, subd. (f).) Section 11362.765 provides that a
“qualified patient . . . who transports . . . marijuana for his or her own medical
use” shall not be criminally liable for transporting marijuana. (§ 11362.765, subd.
(b)(1).) Neither of these provisions requires a qualified patient to identify himself
or herself to police as a medicinal user of marijuana as a condition to asserting any
defenses extended to such person by the MMP. Thus, the Attorney General’s
argument has no basis in the statute, nor does he cite any other authority to support
it. No doubt evidence that a defendant failed to identify himself or herself to
police as a medicinal user of marijuana may have some bearing on whether a jury
believes his or her CUA defense, but this is a different question than whether the
defendant is entitled to assert the defense at all.
The Attorney General’s claim that defendant’s possession of a greater
amount of marijuana than that specified in the MMP negates his entitlement to its
defense against a transportation charge fares no better. The Attorney General
relies on section 11362.77, subdivision (a), under which a qualified patient is
limited to no more than eight ounces of dried marijuana and no more than six
mature or 12 immature marijuana plants. Subdivision (b), however, provides that
a qualified patient may, pursuant to a doctor’s recommendation that a greater
amount is required for the patient’s medical needs, “possess an amount of
19
marijuana consistent with the patient’s needs.” (§ 11362.77, subd. (b).)
Moreover, the sponsors of Senate Bill No. 420 (2003-2004 Reg. Sess.) made clear
that, although couched in mandatory terms, the amounts set forth in section
11362.77, subdivision (a) were intended “to be the threshold, not the ceiling.”
(Historical and Statutory Notes, 40 pt. 1 West’s Ann. Health & Saf. Code (2006
supp.) foll. § 11362.7, p. 192); Gonzalez v. Raich, supra, 545 U.S. ___ [125 S.Ct.
at p. 2215, fn. 41, 162 L.Ed 1] [noting that “the quantity limitations [set forth in
§ 11362.77, subdivision (a)] serve only as a floor”].) In this case, defendant
presented testimony at trial by his doctor that the amount of marijuana found in his
possession at the time of his arrest was appropriate in light of his medical needs
and the manner in which he used the marijuana, e.g., eating it for the most part,
rather than smoking it. Again, the possibility that a properly instructed jury might
ultimately have disbelieved a CUA defense to the transportation charge is a
different matter than whether the jury should have been given the instruction in the
first instance.
Finally, the Attorney General argues that defendant is not entitled to a CUA
defense to the charge of transporting marijuana because the jury “after considering
all the testimony regarding [defendant’s] medical use [found] that [defendant]
possessed the marijuana with intent to sell rather than for his own personal use.”
The jury’s finding goes not to whether defendant was entitled to advance a CUA
defense, or whether the MMP is retroactive, but, as we discuss in the next part,
whether the failure of the trial court to have given the instruction prejudiced
defendant.
We therefore conclude that the MMP applies retroactively to this case and
that, in light of the MMP and the evidence he presented at trial, defendant was
entitled to a compassionate use instruction on the transportation count. The only
20
remaining question is whether the error was prejudicial. We now turn to that
issue.
III.
Defendant contends that the trial court’s failure to have given a CUA
instruction on the transportation count violated his due process right to present a
defense and the error must, therefore, be assessed under the federal standard of
prejudice which asks whether the error was harmless beyond a reasonable doubt.
(Chapman v. California (1967) 386 U.S. 18,24.) He maintains that the
instructional error was prejudicial under this standard.
In People v. Mower, supra, 28 Cal.4th 457, however, we “left open the
question of whether an instructional error [involving a CUA defense] is of federal
constitutional dimension or only of state law import [citation]” because “the error
requires reversal even under the less rigorous [People v.] Watson [(1956) 46
Cal.2d 818] standard.” (Mower, supra, at p. 484.) Under that standard, reversal is
required if “ ‘it is reasonably probable that a result more favorable to the appealing
party would have been reached in the absence of error.’ ” (Ibid., quoting Watson,
supra, at p. 837.) We again need not decide which standard applies because in this
case we conclude that the instructional error was harmless under either standard.
In People v. Sedeno (1974) 10 Cal.3d 703, disapproved on other grounds in
People v. Breverman (1998) 19 Cal.4th 142, 165, we held that the failure of the
trial court to instruct the jury sua sponte on a lesser included offense was harmless
beyond a reasonable doubt under circumstances in which “the factual question
posed by the omitted instruction was necessarily resolved adversely to the
defendant under other, properly given instructions. In such cases the issue should
not be deemed to have been removed from the jury’s consideration since it has
been resolved in another context, and there can be no prejudice to the defendant
since the evidence that would support a finding that only the lesser offense was
21
committed has been rejected by the jury.” (Sedeno, supra, at p. 721.) We have
applied this principle in evaluating the prejudicial effect of other instructional
errors. (See, e.g., People v. Garrison (1989) 47 Cal.3d 746, 778-779 [where, by
finding true a robbery-murder special-circumstance allegation, the jury found the
victim was killed in the course of a robbery and any error in burglary-murder
special-circumstance instruction was rendered harmless]; cf. People v. Mayberry
(1975) 15 Cal.3d 143, 157-158 [finding by jury that victim did not consent to
sexual encounter with defendant did not mean that jury necessarily rejected factual
predicate to defendant’s affirmative defense of good faith belief in consent].)
This analysis applies to the Attorney General’s argument that the jury
necessarily rejected the factual predicate of the omitted CUA defense – that
defendant possessed and, by extension, transported marijuana for his personal
medicinal use – when, under other, properly given instructions, it found that he
possessed the drug with the specific intent to sell it. We agree with this
contention. Under the instructions it was given, the jury had the option of
convicting defendant for simple possession had it been convinced by his claim that
the marijuana found in his possession was for his personal medicinal use. Instead,
it found beyond a reasonable doubt that he possessed the drug with the specific
intent to sell it. Accordingly, “the jury necessarily resolved, although in a
different setting, the same factual question that would have been presented by the
missing instruction” (People v. Mayberry, supra, 15 Cal.3d at p. 158), in a manner
adverse to defendant. We conclude, therefore, that the instructional error was
harmless under any standard of prejudice.9 As this analysis applies to both of the
9 Defendant asserts that the Attorney General’s argument “ignores the fact that
medical use is completely intertwined with personal use.” But the question is
whether the jury understood defendant’s argument was that he possessed the
(footnote continued on next page)
22
charges of which defendant was convicted, we reverse the Court of Appeal and
reinstate defendant’s convictions for possession for sale of marijuana and
transportation.10
(footnote continued from previous page)
marijuana for personal medicinal use and necessarily rejected it. Given the
explicitness of defense counsel’s argument — “When you look at the
circumstances overall, you will find that he was not intending to sell that
marijuana. He had certain [medical] conditions . . . . And that’s what he was
using it for” — the jury could hardly have missed the point.
10 Defendant asserts that the question of whether the Court of Appeal correctly
reversed his conviction for possession for sale is not before us because the
Attorney General only “sought review of the Court of Appeal decision as it
applied to the transportation charge.” This is not accurate. The Attorney
General’s petition for review and his opening brief specifically argued that the
jury’s finding that defendant possessed the marijuana with intent to sell precluded
a finding of prejudice arising from the trial court’s failure to give a CUA
instruction. The Attorney General did not limit that analysis to the transportation
charge and he requested that we reinstate defendant’s conviction of both counts.
Defendant’s response to this argument similarly was not limited to the
transportation count. Moreover, our order granting review did not limit the issues
and under rule 29(b)(1) of the California Rules of Court we are empowered to
“decide any issues that are raised or fairly included in the petition or answer.”
(Cal. Rules of Court, rule 29(b)(1).) In his brief, defendant requests that, if we
reverse the Court of Appeal, we remand the case for that court to consider
additional claims of instructional error it did not reach once it concluded that the
trial court’s failure to give a CUA instruction required reversal. This request
further underscores defendant’s understanding that the Attorney General’s
prejudice argument potentially affected both counts. In light of our reversal of the
Court of Appeal, we will remand the case to allow the court to consider
defendant’s further claims of error.
23
DISPOSITION
For the reasons stated above, the judgment of the Court of Appeal is
reversed and the case is remanded for further proceedings consistent with this
opinion.
MORENO, J.
WE CONCUR: GEORGE, C. J.
KENNARD,
J.
WERDEGAR,
J.
CHIN,
J.
CORRIGAN,
J.
24
CONCURRING AND DISSENTING OPINION BY BAXTER, J.
I concur in the majority’s judgment, but I disagree sharply with certain of
its intermediate conclusions. To place my views in context, I briefly review the
facts and procedural background.
In 2001, defendant was arrested while transporting one pound three ounces
of marijuana in his pickup truck. Officers stopped the truck on a tip and
confirmed that it “reeked” of marijuana. Defendant twice denied there was
marijuana in the truck. Yet a search of his backpack, which had been located on
the passenger seat, revealed numerous baggies containing premeasured amounts of
marijuana. The backpack also contained an electronic scale. Further searching
revealed a one-pound brick of marijuana concealed in a storage compartment
behind the passenger seat.1 The truck contained no paraphernalia for personal use.
Defendant was charged with transporting marijuana (Health & Saf. Code,
§ 11360, subd. (a))2 and possession of marijuana for sale (§ 11359). During his
1
According to an August 30, 2006, press release by the White House Office
of National Drug Control, the current street value of a pound of marijuana is about
$4,000. (White House Off. of Nat. Drug Control, Press Release (Aug. 30, 2006)
online at <http:www.whitehousedrugpolicy.gov/about/index.html> [as of Nov. 27,
2006) On that assumption, defendant was arrested while transporting marijuana
with a street value of about $4,750.
2
All further unlabeled statutory references are to that code.
1
2002 trial, at a hearing under Evidence Code section 402, he sought an instruction
asserting, as to both charges, a defense authorized by the Compassionate Use Act
of 1996 (CUA; § 11362.5). At the time of defendant’s trial, this defense expressly
applied only to medical patients who possessed or cultivated marijuana “for [their]
personal medical purposes” upon a physician’s recommendation or approval. (Id.,
subd. (d).) However, Courts of Appeal had split on the issue whether the defense
implicitly extended to an eligible patient’s transportation of marijuana for
personal medical use.
At the hearing, defendant offered testimony that he was an eligible patient
who was transporting amounts necessary and reasonable for his particular needs.
He also testified that he actually was transporting the marijuana for his personal
medical use. The court nonetheless refused the instruction. It ruled that the CUA
defense did not apply to a charge of possession for sale, and was also not
appropriate for the transportation of “one pound, three ounces of marijuana.”
However, the court permitted defendant to put on evidence that the marijuana was
for his personal use as proof he did not possess it with intent to sell. After the
defense presented its case at trial, defendant renewed his request for CUA defense
instructions. The request was again denied.
Defendant was convicted on both counts. The Court of Appeal reversed,
concluding that the trial court’s failure to instruct on the CUA defense was
prejudicial error as to both convictions. We granted the People’s petition for
review. Our initial aim was to resolve the Court of Appeal conflict on the
application of the CUA defense to a charge of transporting marijuana. While
review was pending, however, the Legislature adopted the Medical Marijuana
Program (MMP; § 11362.7 et seq.), which expressly extends a CUA defense to the
marijuana crimes of transportation, and possession for sale, insofar as the
2
marijuana was possessed and/or transported by an eligible patient for his or her
personal medical purposes. (§ 11362.765, subds. (a), (b)(1).)
The majority holds that the MMP applies retroactively to defendant’s case.
It further determines that the trial court “erred” by failing to instruct on the CUA
defense now authorized by the MMP, because defendant adduced evidence
sufficient to raise a reasonable doubt concerning both his medical eligibility to use
the quantity of marijuana with which he was arrested, and his actual intent to use it
only for his personal medical purposes. However, the majority concludes, this
“error” was harmless, because the jury necessarily rejected any CUA defense
when, under proper instructions defining the offense of possession for sale, it
convicted him of that charge.
I acknowledge that the MMP extends a limited CUA defense to the
particular charges defendant faced. I also concur in the majority’s holding that the
MMP applies retroactively to defendant’s case. I further agree that, even if the
MMP technically would have warranted a CUA defense instruction on either or
both the charged offenses, no retrial is necessary. As the majority indicates,
defendant’s conviction of possession for sale, upon instructions that correctly
defined all the elements of that offense, proves that the absence of a CUA defense
instruction did not affect the trial outcome.3 Additionally, however, I conclude,
contrary to the majority, that defendant did not produce enough evidence to justify
an instruction on the CUA defense pursuant to the MMP.
3
Indeed, the jury found defendant possessed the marijuana with intent to sell
it despite hearing defendant’s evidence that the marijuana was for his personal
medical use, as approved by a physician.
3
As the majority concedes, the CUA defense authorized by the MMP has
three prongs, and defendant would not have been entitled to an MMP instruction
on the defense unless he raised a reasonable doubt with respect to all three. Upon
his failure to do so, the trial court, in the exercise of its “gatekeeping” function
(see People v. Mower (2002) 28 Cal.4th 457, 475-476; People v. Jones (2003)
112 Cal.App.4th 341, 350 (Jones); see also People v. Lucas (1995) 12 Cal.4th 415,
466), could and should have ruled that the evidence was insufficient to allow the
defense to go to the jury.
Thus, to justify a CUA defense instruction under the MMP, defendant must
have adduced creditable evidence, first, that he was a “qualified patient,” in that a
licensed physician had recommended or approved his personal use of marijuana to
treat a condition specified in the CUA (see §§ 11362.715, 11362.765, subds. (a),
(b)(1)), second, that the quantity possessed or transported, to the extent it exceeded
eight ounces of dried marijuana, was consistent with his particular medical needs,
as approved by a physician (§ 11362.77, subds. (a), (b)), and third, that the
marijuana on which the charges are based actually was “for his . . . own personal
medical use” (§ 11362.765, subd. (b)(1)).
I am persuaded defendant did not satisfy this minimal burden as to any of
the prongs of the defense. Defendant’s proffered evidence that he was a qualified
medical marijuana patient at the time of his arrest was extremely weak. At the
Evidence Code section 402 hearing, Dr. Eidelman testified he had twice given
written approval for defendant’s medical use of marijuana. At trial, both
defendant and Dr. Eidelman reiterated this claim.4 However, these writings were
4
The majority notes defense counsel argued that the testimonial evidence
that Dr. Eidelman approved defendant’s medical use of marijuana was
“uncontroverted.” (Maj. opn., ante, at p. 7.) However, both at the Evidence Code
(footnote continued on next page)
4
not produced. Though written approval is not required, this lapse undermines the
credibility of the ”qualified patient” claim. Moreover, as the officers had testified,
defendant, when arrested, did not identify himself as a medical marijuana patient,
and he denied the presence of marijuana in his truck, thereby suggesting
consciousness of guilt.
Under proper circumstances, bare testimonial assertions of a physician’s
approval may be sufficient evidence of the defendant’s status as a qualified
patient. (Jones, supra, 112 Cal.App.4th 341, 350-351.) Here, however, such
claims simply evaporate in light of the powerful contrary indicia that defendant
was not a qualified user who was transporting marijuana for legitimate purposes.
Even more deficient was defendant’s evidence that he had medical approval
to possess quantities in excess of eight dried ounces. Both defendant and Dr.
Eidelman testified that the first of Dr. Eidelman’s two written approvals, issued
prior to defendant’s arrest, was for an unspecified “self-regulating dosage.” In my
view, such a vague and open-ended authorization fails, as a matter of law, to
constitute the specific determination the MMP requires—i.e., “a doctor’s
recommendation that [eight dried ounces] does not meet the qualified patient’s
medical needs.” (§ 11362.77, subd. (b), italics added.)
As defendant and Dr. Eidelman further testified, it was only after the arrest
that defendant obtained Dr. Eidelman’s second approval, which conveniently
(footnote continued from previous page)
section 402 hearing, and at trial, the court allowed the prosecution to impeach Dr.
Eidelman’s credibility with evidence that he was then under investigation by the
California Medical Board for numerous alleged violations of the Business and
Professions Code in connection with his license to practice medicine in this state.
5
endorsed the specific amount of marijuana that already had been found in
defendant’s backpack and truck. But, for obvious reasons, absent “ ‘exigent
circumstances’ ” not present here, the CUA defense cannot apply to a physician’s
postarrest ratification of self-medication on marijuana. (People v. Rigo (1999)
69 Cal.App.4th 409, 412; see also People v. Trippett (1997) 56 Cal.App.4th 1542,
1548, fn. 13.)
Finally, I conclude, the overwhelming evidence that defendant possessed
the marijuana with the intent of selling it precluded a reasonable doubt as to its
personal medical purpose. This evidence prominently included the electronic
scale, the presence of which defendant never explained.
Moreover, as Justice Sills aptly observed in his dissent below, the
marijuana at issue here was not found in “one large bag . . . , as one would expect
. . . if it was for a single individual’s personal use. [On the contrary], it was found
in nine different portions: Two very large baggies, each containing 30.6 grams of
marijuana, seven small baggies in approximately equal amounts[,] and a large
‘brick’ of [marijuana] wrapped in a shirt which weighed about a pound. Six of the
small baggies were located in a black bag along with [the] electronic scale. The
brick was found [secreted under] the truck’s back seat; the large baggies were
found in [defendant’s] backpack but not in the same section with the scales and the
small baggies of marijuana. It is particularly noteworthy that [defendant] was
carrying a single small baggie of marijuana in his pocket, separate from all the
other parcels, as if that were his personal property as distinct from the large supply
available for distribution.”
Sergeant Cuadras, an experienced narcotics officer who participated in the
search and arrest, gave his expert opinion that the marijuana was for sale, not for
personal use. He based this opinion, inter alia, on the way the marijuana was
6
packaged, the large amount of marijuana concealed in the truck’s storage
compartment, and the presence of the electronic scale.
The MMP recognizes the possibility that, with specific medical approval,
qualified patients may be entitled to handle significant amounts of dried marijuana
for their personal medical use. (See § 11362.77.) Yet the overwhelming evidence
detailed above essentially negates an inference that defendant was transporting this
very large quantity of marijuana under such circumstances.5 In sum, his evidence
of personal medical use failed to establish, for purposes of entitlement to a CUA
instruction, a reasonable doubt that he possessed and transported the marijuana
with intent to sell it.
Accordingly, I conclude, an instruction on the CUA defense was not
warranted under the MMP, and the trial court’s ruling to that effect would have
been correct. On this basis alone, I would reverse the Court of Appeal’s judgment
and reinstate defendant’s convictions.
One additional point warrants comment. The majority consistently applies
the term “error” to the trial court’s instructional rulings, even though the majority
relies solely on statutory law that was not in effect when the trial court acted. Of
course, we do not expect clairvoyance from our courts. Indeed, a judicial ruling
that departed from then-current law would itself be error. Thus, even assuming a
CUA instruction was warranted, nunc pro tunc, by virtue of the later-enacted
MMP, I would not imply criticism of a diligent and hard-pressed trial court by
labeling its failure to anticipate this statute as “error.”
5
The majority notes defendant testified that the large quantity was necessary
and reasonable because he preferred to eat, rather than smoke, marijuana.
However, Sergeant Cuadras testified that in his experience he had never
encountered someone transporting a pound and three ounces of marijuana for the
purpose of eating it.
7
Instead, it is sufficient to determine, in hindsight, whether the MMP, as
retroactively applied, justified a CUA instruction in defendant’s case, and, if so,
whether the absence of the instruction influenced the outcome, thus rendering the
trial unfair by current standards. If the answer is “yes,” we can and should simply
remand for a new trial, without citing trial court “error” as the reason.
As indicated, I, unlike the majority, do not believe the MMP would justify a
CUA instruction on the facts of this case. Assuming, however, that the majority is
correct on that point, I agree, for the reasons expressed in its “harmless error”
analysis, that omission of the instruction did not affect the trial outcome, thus
rendering the trial unfair. I therefore concur in the judgment of reversal.
BAXTER, J.
8
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Wright
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 121 Cal.App.4th 1356
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S128442Date Filed: November 27, 2006
__________________________________________________________________________________
Court:
SuperiorCounty: Orange
Judge: James A. Stotler
__________________________________________________________________________________
Attorneys for Appellant:
Maureen J. Shanahan, under appointment by the Supreme Court, for Defendant and Appellant.__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Donald E. de Nicola,Deputy State Solicitor General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons,
Assistant Attorney General, Pamela A. Ratner Sobeck, Marc J. Nolan, Ana R. Duarte and Erika Hiramatsu,
Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Maureen J. ShanahanP.O. Box 789
Pacific Palisades, CA 90272
(800) 541-2802
Erika Hiramatsu
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92186-5266
(619) 645-2224
Opinion Information
| Date: | Docket Number: |
| Mon, 11/27/2006 | S128442 |
Parties
| 1 | The People (Plaintiff and Respondent) Represented by Erika Hiramatsu Office of the Attorney General 110 W. "A" Street, Suite 1100 San Diego, CA |
| 2 | Wright, Shaun Eric (Defendant and Appellant) Represented by Maureen J. Shanahan Totaro & Shanahan P.O. Box 789 Pacific Palisades, CA |
| 3 | Wright, Shaun Eric (Defendant and Appellant) Represented by Appellate Defenders, Inc. 555 W. Beech Street, Suite 300 555 W. Beech Street, Suite 300 San Diego, CA |
| Disposition | |
| Nov 27 2006 | Opinion: Reversed |
| Dockets | |
| Oct 12 2004 | Record requested |
| Oct 12 2004 | Petition for review filed by counsel (AG) for resp. (People) |
| Oct 19 2004 | Received Court of Appeal record file jacket/briefs/transcripts |
| Dec 1 2004 | Petition for review granted (criminal case) Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown, and Moreno, JJ. |
| Dec 21 2004 | Request for extension of time filed In San Diego by counsel for respondent The People, requesting a 30-day extension of time to and including January 31, 2005, to file respondent's opening brief on the merits. |
| Dec 30 2004 | Counsel appointment order filed Maureen J. Shanahan for appellant. Appellant's brief on the merits must be served and filed on or before 30 days from the date respondent's opening brief on the merits is filed. |
| Jan 3 2005 | Extension of time granted to Jan. 31, 2005 for respondent to serve and file the opening brief on the merits. |
| Jan 25 2005 | Received additional record transcripts |
| Jan 31 2005 | Request for extension of time filed to 2-22-2005 to file respondent's opening brief on the merits |
| Feb 2 2005 | Extension of time granted respondent to 2/22/205 to file the opening brief on the merits |
| Feb 17 2005 | Request for extension of time filed (third request) by respondent for a 10-day e.o.t. to 3-4-2005 to file the opening brief on the merits. |
| Feb 24 2005 | Extension of time granted On application of respondent and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including 3-4-2005. |
| Mar 4 2005 | Opening brief on the merits filed (in San Diego) by Respondent People |
| Mar 9 2005 | Received: (in San Diego) Letter from A.G. dated 3-8-2005 requests that reformatted respondent's brief on the merits attached be substituted for the previously-filed Opening Brief on the Merits. |
| Mar 14 2005 | Order filed Respondent's request to substitute reformatted opening brief on the merits for the previously filed brief of March 4, 2005 is hereby granted. |
| Apr 6 2005 | Request for extension of time filed By counsel for appellant requesting a 30-day extension to and including May 13, 2005 to file appellant's answer brief on the merits. |
| Apr 11 2005 | Extension of time granted On application of appellant and good cause appearing, it is ordered that the time to serve and file appellant's answer brief on the merits is hereby extended to and including May 13, 2005. |
| May 9 2005 | Request for extension of time filed answer brief/merits to 6-20-05 |
| May 13 2005 | Extension of time granted On application of appellant and good cause appearing, it is ordered that the time to serve and file appellant's answer brief on the merits is hereby extended to and including June 20, 2005. |
| Jun 14 2005 | Request for extension of time filed appellant's brief on the merits to July 20, 2005 (Third Request) |
| Jun 14 2005 | Extension of time granted on application of Appellant and good cause appearing, it is ordered that the time to serve and file the Appellant's Brief on the Merits is extended to and including July 20, 2005. |
| Jul 15 2005 | Request for extension of time filed by appellant for an additional 20 days [ 8-9-2005 ] to file the answer brief on the merits. |
| Jul 18 2005 | Extension of time granted On application of appellant and good cause appearing, it is ordered that the time to serve and file appellant's answer brief on the merits is extended to and including August 9, 2005. |
| Aug 1 2005 | Request for extension of time filed (Fifth Request) for an additional 25 days to file appellant's brief on the merits. |
| Aug 3 2005 | Extension of time granted On application of appellant for a 25-day extension of time, and good cause appeairng, it is ordered that the time to serve and file the answer brief on the merits is extended to and including 9-3-05. |
| Aug 30 2005 | Request for extension of time filed for an additional 30 days (10/3/2005) to file Appellant's Answer Brief on the Merits. (Sixth) |
| Aug 31 2005 | Extension of time granted On application of appellant and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including October 3, 2005. |
| Oct 4 2005 | Answer brief on the merits filed By Attorney for Appellant (Shaun Eric Wright) |
| Oct 18 2005 | Request for extension of time filed by the Attorney General to and inlcuding November 23, 2005, to file Respondent's Reply Brief on the Merits (Filed in San Diego) |
| Oct 21 2005 | Extension of time granted On application of respondent and good cause appeairng, it is ordered that the time to serve and file the reply brief on the merits is hereby extended to and including November 23, 2005. |
| Nov 16 2005 | Request for extension of time filed to 12-23-2005 to fle respondent's reply brief on the merits. |
| Nov 23 2005 | Extension of time granted To December 23, 2005 to file Respondent's Reply Brief on the Merits. |
| Dec 16 2005 | Request for extension of time filed by respondent, requesting a 30-day extension to and including January 23, 2006 to file respondent's reply brief on the merits. Filed in San Diego |
| Dec 28 2005 | Extension of time granted On application of respondent and good cause appearing, it is ordered that the time to serve and file respondent's reply brief on the merits is hereby extended to and including January 23, 2006. No further extensions of time are contemplated. |
| Jan 19 2006 | Received: Request for extension of time to 2-13-2006 to file respondent's reply brief on the merits. (Received at 4DCA1) |
| Jan 23 2006 | Request for extension of time filed by Respondent for an extension of time to 2-13-2006 to file the reply brief on the merits. |
| Jan 24 2006 | Extension of time granted On application of respondent and good cause appeairng, it is ordered that the time to serve and file the reply brief on the merits is extended to and including February 13, 2006. No further extensions of time will be granted. |
| Feb 14 2006 | Reply brief filed (case fully briefed) Respondent People Erika Hiramatsu, Deputy Attorney General. (Filed in San Diego) |
| Jun 14 2006 | Compensation awarded counsel Atty Shanahan |
| Aug 3 2006 | Case ordered on calendar September 5, 2006, at 2:00 p.m., in San Francisco |
| Sep 5 2006 | Cause argued and submitted |
| Nov 27 2006 | Opinion filed: Judgment reversed and remanded. Opinion by Moreno, J. -- joined by George, C.J., Kennard, Werdegar, Chin, Corrigan, JJ. Concurring and Dissenting Opinion by Baxter, J. [ remanded to C/A ] |
| Dec 8 2006 | Filed: Letter dated 11-5-2006 from Maureen J. Shanahan, counsel for appellant. |
| Dec 20 2006 | Opinion modified - no change in judgment |
| Dec 20 2006 | Order filed Opinion Modified. |
| Dec 20 2006 | Remittitur issued (criminal case) |
| Jan 3 2007 | Compensation awarded counsel Atty Shanahan |
| Jan 23 2007 | Returned record |
| Jan 24 2007 | Returned record Additional papers sent in one large envelope to the attention of John Wright. |
| Briefs | |
| Mar 4 2005 | Opening brief on the merits filed |
| Oct 4 2005 | Answer brief on the merits filed |
| Feb 14 2006 | Reply brief filed (case fully briefed) |
