People v. Jones

4 Cal. Rptr. 3d 916, 112 Cal. App. 4th 341, 2003 Daily Journal DAR 11032, 2003 Cal. Daily Op. Serv. 8784, 2003 Cal. App. LEXIS 1491

Opinions

Opinion

ROBIE, J.

Charged with cultivating marijuana (Health & Saf. Code, § 11358), defendant William Ira Jones testified at a pretrial hearing under Evidence Code section 402 (hereafter section 402) that when he asked his physician whether he should try marijuana for his migraine headaches, his physician said, “It might help, go ahead.” Despite this testimony, the trial court precluded defendant from presenting a defense under the Compassionate Use Act of 1996 (Health & Saf. Code, § 11362.5; also known as Proposition 215) at trial because the court concluded there was “nothing to indicate that the doctor approved” defendant’s marijuana use.

On appeal from an order granting probation after the trial court found him guilty of the cultivation charge, defendant contends the trial court erred in refusing to allow him to present his Compassionate Use Act defense to a jury. We agree in light of the fact that under our Supreme Court’s decision in People v. Mower (2002) 28 Cal.4th 457, 481 [122 Cal.Rptr.2d 326, 49 P.3d 1067], a defendant need only raise a reasonable doubt whether he or she qualifies for the defense.

Under the Compassionate Use Act, the statute forbidding the cultivation of marijuana does “not apply to a patient. . . who . . . cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.” (Health & Saf. Code, § 11362.5, subd. (d), italics added.) We conclude a physician gives his or her “approval” of a patient’s marijuana use within the meaning of the Compassionate Use Act if the physician expresses to the patient a favorable opinion of marijuana use for treatment of the patient’s illness. We further conclude that when a Compassionate Use Act defense is the subject of a pretrial hearing under Evidence Code section 402, the defendant need only produce evidence sufficient to raise a reasonable doubt on the element of the defense in question. Because defendant met that burden here on the question of whether he had a physician’s approval to use marijuana, the trial court erred in precluding him from presenting his Compassionate Use Act defense to a jury. Accordingly, we will reverse the order granting probation.

FACTUAL AND PROCEDURAL BACKGROUND

After law enforcement officers found a substantial number of marijuana plants growing in a shed on defendant’s property, defendant was charged by amended information with one count of cultivating marijuana and one count of possessing marijuana for sale.

On the prosecution’s motion, the court held a section 402 hearing before trial to determine whether defendant should be allowed to present evidence he cultivated the marijuana for his own medical use, as permitted by the Compassionate Use Act.¹ Defendant and his physician, Dr. Walter Morgan, testified at the hearing. Although Dr. Morgan’s testimony was equivocal, defendant testified that when he asked the doctor if it would be okay if he tried marijuana for his migraine headaches, Dr. Morgan said, “It might help, go ahead.” The court concluded the doctor’s statement did not “rise to the level of a recommendation or approval” for the use of marijuana and therefore defendant could not put on a Compassionate Use Act defense. Defendant subsequently pled no contest based on assurances from the court he could appeal the ruling excluding his defense.

On appeal, we concluded defendant’s no contest plea foreclosed any appellate review of the trial court’s in limine ruling. (People v. Jones (May 8, 2001, C034877) [nonpub. opn.].) Because the plea was based, at least in part, on false assurances from the trial court, we reversed the judgment and remanded the case to the trial court to allow defendant to withdraw his plea. He did so, and the case was once again set for trial.

The new trial judge decided he was not bound by the first trial judge’s ruling on the Compassionate Use Act defense and proceeded to consider the issue anew. The court first heard argument based on the testimony taken at the previous hearing. Later, however, the court became concerned about the quantity of marijuana plants defendant had possessed and how that bore on his Compassionate Use Act defense, and the court suggested the parties make a record if they could not agree on the quantity. The following day, several witnesses testified on the quantity issue. Following that testimony, and further argument, the trial court concluded defendant could not present his Compassionate Use Act defense to a jury because there was “nothing to indicate that the doctor approved” defendant’s marijuana use and because the quantity defendant possessed did not bear any “rational relation to someone [who] has migraines three or four times a year.”

In addition to foreclosing defendant’s Compassionate Use Act defense, the court also ruled defendant could not present a mistake of fact defense based on his allegedly mistaken belief that he had his doctor’s approval to use marijuana.

In light of the court’s rulings, defendant agreed to submit the case to the court for decision on the police reports and the transcripts of the various hearings that had been held. Based on these materials, the court found defendant guilty of cultivating marijuana but not guilty of possessing marijuana for sale. The court also found true an arming enhancement allegation. The court concluded defendant was not eligible for sentencing under Proposition 36, but suspended imposition of judgment and placed defendant on probation for four years, with 30 days in jail, stayed pending appeal. Defendant appeals from the order granting probation.

DISCUSSION

Defendant contends the trial court erred by refusing to allow him to present his Compassionate Use Act defense to a jury. We agree.

I

Physician Approval or Recommendation of Marijuana Use

Although the trial court excluded evidence of defendant’s Compassionate Use Act defense based on the supposed lack of any approval by defendant’s physician for his use of marijuana and the quantity of marijuana defendant possessed,² the People attempt to defend the ruling on the first ground alone, arguing “[t]here is no substantial evidence that [defendant] had the approval of a physician to use marijuana.” Accordingly, we likewise address only the “approval” issue.

We begin with the language of the Compassionate Use Act. One of the stated purposes of that law is “[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.” (Health & Saf. Code, § 11362.5, subd. (b)(1)(A), italics added.) As relevant here, subdivision (d) of section 11362.5 of Health and Safety Code provides that “[sjection 11358, relating to the cultivation of marijuana, shall not apply to a patient . . . who . . . cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.” (Italics added.)

In People v. Trippet (1997) 56 Cal.App.4th 1532, 1548 [66 Cal.Rptr.2d 559], the court concluded the words “recommendation” and “approval” “mean something slightly different, and . . . ‘approval’ connotes a less formal act than a ‘recommendation. ’ ” We agree the two terms have different meanings, but the difference is not simply a matter of the degree of formality. To “recommend” something is “to present [it] as worthy of acceptance or trial.” (Merriam-Webster’s Collegiate Dict. (10th ed. 2001) p. 974.) To “approve” something is to “express a favorable opinion of’ it. (Id. at p. 57.) The word “recommendation,” as used in the Compassionate Use Act, suggests the physician has raised the issue of marijuana use and presented it to the patient as a treatment that would benefit the patient’s health by providing relief from an illness. The word “approval,” on the other hand, suggests the patient has raised the issue of marijuana use, and the physician has expressed a favorable opinion of marijuana use as a treatment for the patient. Thus, a physician could approve of a patient’s suggested use of marijuana without ever recommending its use.

At the first section 402 hearing in this case, Dr. Morgan was adamant that he never recommended defendant use marijuana for his migraine headaches. Defendant also admitted Dr. Morgan did not recommend he use marijuana. There was evidence, however, that Dr. Morgan expressed a favorable opinion of defendant’s use of marijuana, which would constitute an “approval” under the Compassionate Use Act.

On this point, Dr. Morgan’s testimony was equivocal at best. Dr. Morgan recalled seeing defendant about his migraine headaches around September 1997, and he recalled discussing marijuana as a treatment for those headaches. According to Dr. Morgan, defendant “mentioned that he had used [marijuana] for his migraine headaches” and “that he found it helpful.” When asked whether he approved of or recommended defendant’s marijuana use, Dr. Morgan said: “I don’t really recall what I would have said to him at that time, [ex]cept what I probably generally would have said. I really don’t remember the language that I used for him.” When asked how he “generally . . . might have responded” to defendant’s mention of marijuana, Dr. Morgan said: “My general approach is, if it works on something that’s difficult, I support it. But I’m sure in this case I would not have recommended it specifically because of its controversial legal status.” Dr. Morgan then admitted he felt he “would be in trouble for prosecution if [he] would have at that time recommended or approved [defendant’s] marijuana use.”³

On cross-examination, when asked whether he had approved defendant’s use of marijuana, either orally or in writing, Dr. Morgan responded: “Certainly not in writing. I don’t believe I would have used such words as, ‘Keep using it,’ or, ‘It is okay to continue doing that.’ I don’t think I would have used those kinds of words.” Dr. Morgan went on to testify that it “would be more likely” that he did not respond at all to defendant’s assertion of marijuana use. Later, while examining Dr. Morgan on defendant’s medical records, the prosecutor approached the issue again, asking: “So I know you’re a little fuzzy on the details, but would the absence of [any mention of marijuana] in the medical record for that date indicate to you that you did not approve the defendant’s use of marijuana?” Dr. Morgan cryptically responded: “I certainly did not recommend it. I did not approve it. I did verbally approve it, and I certainly did not recommend it.” When asked whether he “affirmatively approve[d defendant’s] use of marijuana,” Dr. Morgan said: “I don’t believe I would have done that.”

In contrast to Dr. Morgan’s equivocal testimony as to whether he had expressed his approval of defendant’s use of marijuana, defendant was adamant that Dr. Morgan had expressed a favorable opinion of his marijuana use. Defendant testified that when he went to see Dr. Morgan, he had “never used marijuana in [his] life.” He claimed to have read on the Internet that marijuana helped migraine headaches, so he asked Dr. Morgan “if it would be okay if I tried it, and [Dr. Morgan] said, ‘It might help, go ahead.’ ” Defendant went on to testify that he and Dr. Morgan “had quite a bit of discussion on it, and [Dr. Morgan] seemed to be awful afraid of the legal problem.” According to defendant, Dr. Morgan said “he didn’t want to put it in writing,” and although he did not use the word “approve,” he did say “If it helps, use it.” Defendant took this to be an approval.

II

The Burden of Proof on Defendant

Having surveyed the relevant evidence from the section 402 hearing, we turn to the central question: Did the trial court err in excluding defendant’s Compassionate Use Act defense based on this evidence because, as the trial court saw it, there was “nothing to indicate that the doctor approved” defendant’s marijuana use? The answer to that question turns on the proper standards to be applied in a section 402 hearing on a Compassionate Use Act defense.

At a section 402 hearing, “[t]he proponent of the proffered evidence has the burden of producing evidence as to the existence of the preliminary fact, and the proffered evidence is inadmissible unless the court finds that there is evidence sufficient to sustain a finding of the existence of the preliminary fact, when: [f] (1) The relevance of the proffered evidence depends on the existence of the preliminary fact. . . .” (Evid. Code, § 403, subd. (a).)

Here, the “proffered evidence” was the evidence of defendant’s Compassionate Use Act defense as a whole. The “preliminary fact” was the element of the defense the People were challenging, namely, whether defendant had the approval of a physician to use marijuana for his migraine headaches. (See Evid. Code, §§ 400, 401 [defining “preliminary fact” and “proffered evidence”]; People v. Galambos (2002) 104 Cal.App.4th 1147, 1156 [128 Cal.Rptr.2d 844] [explaining that an element of an affirmative defense is a “preliminary fact” “upon which depends the admission of the evidence comprising the entire defense”].) The relevance of the Compassionate Use Act defense as a whole depended on the existence of the physician’s approval. Therefore, as the proponent of the defense, defendant bore “the burden of producing evidence as to the existence of the” approval, and the evidence of the defense as a whole was inadmissible unless defendant produced sufficient evidence to sustain a finding of the existence of the approval.

In determining whether the evidence was sufficient to sustain a finding that Dr. Morgan approved of defendant’s marijuana use, it is critical to consider the burden of proof imposed on a defendant who asserts a Compassionate Use Act defense. As our Supreme Court recently explained in People v. Mower, supra, 28 Cal.4th at page 481 (which was decided three months after the second section 402 hearing in this case), “as to the facts underlying the defense provided by [the Compassionate Use Act], defendant is required merely to raise a reasonable doubt.” Thus, at trial a defendant asserting a Compassionate Use Act defense need not persuade the jury by a preponderance of the evidence that he had a physician’s approval to use marijuana. Instead, he need only raise a reasonable doubt as to whether he had such an approval.

There is some authority for the proposition that “the correct standard of proof for a preliminary fact under Evidence Code section 403 is evidence sufficient to support a finding by a preponderance of the evidence.” (People v. Herrera (2000) 83 Cal.App.4th 46, 61 [98 Cal.Rptr.2d 911].) That cannot be true, however, when (as here) a burden of proof less onerous than preponderance of the evidence applies at trial. If, to prevail at trial, the defendant is required only to raise a reasonable doubt as to whether he had a physician’s approval to use marijuana, then no greater burden can be imposed on the defendant at a pretrial section 402 hearing called to challenge his Compassionate Use Act defense. If the defendant produces evidence at the section 402 hearing sufficient to raise a reasonable doubt as to whether he had a physician’s approval to use marijuana, then the gatekeeping function of a section 402 hearing is satisfied and the defense should go to the jury to decide. Only if the defendant fails to produce sufficient evidence to raise a reasonable doubt about the existence of an approval is the trial court justified in keeping the matter from the jury. (See People v. Lucas (1995) 12 Cal.4th 415, 467 [48 Cal.Rptr.2d 525, 907 P.2d 373] [“ ‘[T]he judge’s function on questions of this sort is merely to determine whether there is evidence sufficient to permit a jury to decide the question’ ”].)

Here, we conclude the evidence was sufficient to raise a reasonable doubt as to whether Dr. Morgan approved defendant’s use of marijuana for his migraine headaches.⁴ If the jury credited defendant’s testimony that Dr. Morgan told him marijuana use “ ‘might help, go ahead,’ ” the jury could find defendant had Dr. Morgan’s “approval” because Dr. Morgan expressed a favorable opinion of defendant’s proposed marijuana use. Because defendant’s testimony was sufficient to raise a reasonable doubt over the fact of the physician’s approval, the trial court erred in barring defendant from presenting his Compassionate Use Act defense to the jury.

That Dr. Morgan himself did not admit to having approved of defendant’s marijuana use is of no matter. His testimony was equivocal enough on the point that the jury could have believed him and still found he gave his verbal approval of defendant’s marijuana use, as defendant claimed. In any event, even if Dr. Morgan had adamantly denied approving defendant’s marijuana use, it would not have mattered for purposes of the section 402 hearing. Because the Compassionate Use Act defense was ultimately a question for the jury, it was not for the trial court to decide whether Dr. Morgan was more credible than defendant. The trial court’s role was simply to decide whether there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt as to whether Dr. Morgan approved defendant’s marijuana use. Defendant’s testimony constituted such evidence. Thus, defendant should have been allowed to present his Compassionate Use Act defense to the jury, and the trial court erred in granting the prosecution’s motion to exclude that defense.⁵

DISPOSITION

The order granting probation is reversed.

Blease, Acting P. J., concurred.

1 Defendant recognized the Compassionate Use Act does not apply to a charge of possession for sale.

2 Quantity is relevant to a Compassionate Use Act defense because the law authorizes the cultivation and possession of marijuana only “for the personal medical purposes of the patient.” (Health & Saf. Code, § 11362.5, subd. (d).) If a person cultivates or possesses marijuana for any other purpose, the defense is not available. (See People v. Mower, supra, 28 Cal.4th at pp. 484-485 [jury question whether defendant possessed and cultivated 31 marijuana plants entirely for his own personal medical purposes].)

3 At least as far as state law is concerned, Dr. Morgan’s fear was unjustified, because the Compassionate Use Act provides that “[njotwithstanding any other provision of law, no physician in this state shall be punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes.” (Health & Saf. Code, § 11362.5, subd. (c).) While fifis provision does not expressly confer immunity for having “approved” marijuana, we do not deem the omission of the word “approved” from this provision of any significance in determining the meaning of the term “approval” in subdivision (d) of Health and Safety Code section 11362.5.

4 It is not clear from the record what burden of proof—preponderance of the evidence or evidence sufficient to raise a reasonable doubt—the trial court applied at the second section 402 hearing.

5 Because we conclude the order granting probation must be reversed on this basis, we do not reach defendant’s alternate arguments that the trial court erred in precluding him from presenting a mistake of fact defense or that he was eligible for sentencing under Proposition 36.