THE PEOPLE v. WILLIAM FRANK COLVIN
B227958
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT,
DIVISION THREE
203 Cal. App. 4th 1029; 137 Cal. Rptr. 3d 856;
February 23, 2012, Filed
OPINION
ALDRICH, J.—
INTRODUCTION
While transporting in his car about one pound of marijuana
from one medical marijuana establishment to a second, defendant and appellant
William Frank Colvin was stopped and arrested. He was charged with, among other
things, transporting marijuana. At his court trial, Colvin raised a defense
under the Medical Marijuana Program Act (MMPA), which provides a defense to
specified classes of people, including “qualified patients,” who “associate …
in order collectively or cooperatively to cultivate marijuana for medical
purposes.” (Health & Saf. Code, § 11362.775.)1 The trial court found that
Colvin, although a qualified patient operating a “legitimate dispensary,” was
not entitled to the defense because the “transportation had nothing to do with
the cultivation process” and was “outside what the law permits.” We conclude
that, based on the trial court's findings, section 11362.775 applied. We reject
the Attorney General's argument that the section applies only to those
cooperatives involving “some united action or participation among all” members.
The judgment is therefore reversed.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual background.
Colvin co-owns and operates Hollywood Holistic 1 and
Hollywood Holistic 2 (collectively Holistic), medical marijuana dispensaries.
Holistic is a nonprofit corporation, formed in 2005, opened in 2006, and
registered with the City of Los Angeles in 2007. The city renewed the license
in May 2010. The Los Angeles Police Department Gangs and Narcotics Division
informed Colvin that Hollywood Holistic Inc.'s live scan application met the
standard in the “Medical Marijuana Collective Ordinance” and would be forwarded
to the office of the city clerk for the next step in the ordinance registration
process. Holistic pays Colvin approximately $400 per week.2 The money Holistic
makes is used to pay rent, utilities, lights, and necessities for the business.
As of March 2009, Holistic had 1,500 patients or members,
although that number grew to over 5,000 by the time of trial. Approximately 14
members, including Colvin, grow marijuana, and Holistic reimburses growers for
expenditures, such as fertilizer, hydroponic equipment, and lighting for indoor
growing.3 Some growers are in Los Angeles County, but others are in Humboldt
County. Those who grow marijuana drop it off at Holistic for other members to
buy. Holistic also grows marijuana onsite, and the Los Angeles Police
Department (LAPD) visited the three “grow rooms.” None of the marijuana
Holistic distributes is from a source other than a collective member.
If a person comes in with a prescription for medical
marijuana, he or she is first left in “primary holding” while someone looks him
or her up online or calls his or her doctor to make sure he or she is “legal.”
The person's identification is checked. Once that process is completed, the
person is let in and fills out a membership application and patient information
sheet.4 The person is then given a prescription number that Holistic uses to
identify him or her and to track when his or her prescription expires. He or
she also signs a registry so that Holistic has a record of his or her medical
problem. Finally, the person is given his or her medicine, which is “legally
tagged” and put in a stapled bag. Every time the person returns, the visit is
registered in a computer program. Patients are allowed no more than one ounce
of marijuana in one day, and, to minimize the chance of crime, each Holistic
establishment has no more than two to three pounds of marijuana at any time.
People who come to Holistic for the first time might pay for the marijuana, but
returning members pay a “charter fee,” determined each quarter based on the
person's needs, that is used to grow marijuana for the person.
On March 10, 2009, Colvin was arrested a block and a half
from Holistic 2 (in Hollywood), while he was en route to Holistic 1 (in Santa
Monica). He was delivering just over a pound of marijuana for Holistic's use.5
Colvin also had $4,285 in cash. Colvin explained to the officer that he managed
marijuana dispensaries and was delivering marijuana to one of them. He had a
valid doctor's note, having been prescribed marijuana since 2003.
II. Procedural background.
An information alleged three counts against Colvin: count 1,
possession of a controlled substance, cocaine (§ 11350, subd. (a)); count 2,
sale or transportation of marijuana (§ 11360, subd. (a)); and count 3,
possession of concentrated cannabis (§ 11357, subd. (a)). Colvin waived his
right to a jury, and, at the close of evidence, made a motion for a judgment of
acquittal under Penal Code section 1118.6 The court denied the motion and found
that defendant was not entitled to the defense under section 11362.775 because
“the transportation here had nothing to do with the cultivation process.” The
court, however, also found that Colvin was a qualified patient and that Colvin
was operating a “legitimate” “dispensary.” The court rejected Colvin's due
process argument.
On September 9, 2010, the trial court placed Colvin on
probation under Proposition 36 for 18 months on count 1 for possession of
cocaine. The court also placed him on three years' probation on counts 2 and 3
and ordered him to perform 200 hours of community service.
DISCUSSION
Section 11362.775 applied to Colvin based on the trial
court's express findings.
In 1996, voters passed Proposition 215, the Compassionate
Use Act of 1996 (CUA; § 11362.5). One purpose of the CUA was 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 who has determined that the person's health would
benefit from the use of marijuana in the treatment” of illnesses for which
marijuana provides relief. (§ 11362.5, subd. (b)(1)(A); see also People v. Wright
(2006) 40 Cal.4th 81, 89–90 [51 Cal. Rptr. 3d 80, 146 P.3d 531].) A second
purpose was to ensure that patients and their primary caregivers who obtain and
use medical marijuana are not subject to criminal prosecution or sanction. (§
11362.5, subd. (b)(1)(B).) The CUA therefore provided that 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 a doctor's recommendation. (§ 11362.5,
subd. (d).) The CUA thus provided a limited immunity from prosecution,
including a defense at trial. (People v. Mower (2002) 28 Cal.4th 457, 470 [122
Cal. Rptr. 2d 326, 49 P.3d 1067].)
In response to the CUA's encouragement “to implement a plan
to provide for the safe and affordable distribution of marijuana to all
patients” in need of it (§ 11362.5, subd. (b)(1)(C)), our Legislature enacted
the MMPA (§ 11362.7 et seq.). Through the MMPA, the Legislature sought to “(1)
[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. [¶] (2) Promote uniform
and consistent application of the act among the counties within the state. [¶]
(3) Enhance the access of patients and caregivers to medical marijuana through
collective, cooperative cultivation projects.” (Stats. 2003, ch. 875, § 1,
subd. (b), pp. 6422–6423.) To these ends, section 11362.775 of the MMPA
provides, “Qualified patients, persons with valid identification cards, and the
designated primary caregivers of qualified patients and persons with
identification cards, who associate within the State of California in order
collectively or cooperatively to cultivate marijuana for medical purposes,
shall not solely on the basis of that fact be subject to state criminal
sanctions under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570.”
(§ 11362.775, italics added.)7
Colvin does not raise this section as a defense and does not
discuss it. Rather, he conceded in the trial court and in this court that he
was not transporting the marijuana for his personal use, and he was not a
primary caregiver. (See generally § 11362.5, subd. (e) [a primary caregiver is
an individual designated by the person exempted under the CUA who has
consistently assumed responsibility for the housing, health, or safety of that
person]; People v. Mentch (2008) 45 Cal.4th 274, 283 [85 Cal. Rptr. 3d 480, 195
P.3d 1061] [a primary caregiver is a person who (1) consistently provides
caregiving (2) independent of any assistance in taking medical marijuana, (3)
at or before the time he or she assumed responsibility for assisting with
medical marijuana].)
The trial court here concluded that section 11362.775 did
not apply to Colvin because “the transportation … had nothing to do with the
cultivation process.” The trial court's conclusion, however, does not flow from
its findings. The court found that Colvin was a qualified patient and that he
was operating a “legitimate” “dispensary.”8 If Colvin, a qualified patient, was
operating a legitimate medical marijuana cooperative, then he “shall not solely
on the basis of that fact be subject to state criminal sanctions under” section
11360 (transportation or sale of marijuana). (§ 11362.775; see generally People
v. Urziceanu (2005) 132 Cal.App.4th 747, 785 [33 Cal. Rptr. 3d 859] (Urziceanu)
[finding that § 11362.775 represents “a dramatic change in the prohibitions on
the use, distribution, and cultivation of marijuana for persons who are
qualified patients or primary caregivers … . Its specific itemization of the
marijuana sales law indicates it contemplates the formation and operation of
medicinal marijuana cooperatives that would receive reimbursement for marijuana
and the services provided in conjunction with the provision of that
marijuana.”].) The court nonetheless held that the defense did not apply to
Colvin because “his transportation was outside of what the law permits.”
It is unclear what the trial court meant when it said that
Colvin's transportation of marijuana was unrelated to the cultivation process
and was outside what section 11362.775 allows. There was no evidence that
Colvin's transportation of one pound of marijuana was for anything other than
Holistic. To the extent the trial court ruled as it did because it believed
that only cooperative or collective cultivators of marijuana can transport the
product, Colvin/Holistic is a cultivator: Holistic has three onsite “grow
rooms,” which the LAPD visited. Fourteen members of Holistic also grow
marijuana for Holistic offsite. All of the marijuana Holistic distributes is
from a cooperative member; none of it is acquired from an outside source. Thus,
even under a reading of section 11362.775 limiting transportation of marijuana
only to cooperatives that cultivate it, then Colvin was entitled to the
immunity.
The Attorney General's only response is that section
11362.775 does not condone “a large-scale, wholesale-retail marijuana network”
like Holistic, which has approximately 5,000 members. The Attorney General
argues that a collective or cooperative cultivation “must entail some united
action or participation among all those involved, as distinct from merely a
supplier-consumer relationship.” There must be, the Attorney General suggests,
“some modicum of collaboration” in which qualified patients and caregivers “
‘come together’ ” in “some way.”
Nothing on the face of the statute or in its legislative
history supports this interpretation. When interpreting a statute, our “
‘fundamental task … is to determine the Legislature's intent so as to
effectuate the law's purpose.’ ” (People v. Lewis (2008) 43 Cal.4th 415, 491
[75 Cal. Rptr. 3d 588, 181 P.3d 947].) “ ‘We begin by examining the statute's
words, giving them a plain and commonsense meaning. [Citation.]’ ” (Id. at p.
491.) If the statutory language is unambiguous, the plain meaning controls.
(People v. King (2006) 38 Cal.4th 617, 622 [42 Cal. Rptr. 3d 743, 133 P.3d
636].) But if the statutory language is reasonably susceptible to more than one
interpretation, we may consider various extrinsic aids, including “ ‘ “ ‘the
purpose of the statute, the evils to be remedied, the legislative history,
public policy, and the statutory scheme encompassing the statute.’ ” ’
[Citations.]” (Ibid.; see also In re Derrick B. (2006) 39 Cal.4th 535, 539 [47
Cal. Rptr. 3d 13, 139 P.3d 485].)
On the face of the statute, to be entitled to a defense
under section 11362.775, a defendant must, first, be either a qualified
patient, person with a valid identification card or a designated primary
caregiver. Second, the defendant must associate with like persons to
collectively or cooperatively cultivate marijuana. (§ 11362.775.) There is no
dispute as to the first requirement, namely, that Colvin was a qualified
patient. The trial court made a finding he was a qualified patient, and the
Attorney General does not challenge that finding. There does not even appear to
be a dispute that Holistic is comprised of other qualified patients, persons
with valid identification cards or designated primary caregivers. That Holistic
is comprised of persons designated in section 11362.775 was impliedly found by
the trial court when it said Holistic was a “legitimate” dispensary.
The dispute concerns what it means to “collectively or
cooperatively” cultivate medical marijuana. The MMPA's legislative history
tells us little about section 11362.775 or what it means to associate to “collectively
or cooperatively … cultivate [medical] marijuana.” It merely reveals that an
initial version of the section would have directed the Department of Health
Services to promulgate regulations ensuring the consistency and quality of
medicinal marijuana and protect against its illegal diversion, and that some
groups were concerned it would lead to “mafia-like” organizations of marijuana
growers. (See, e.g., Lopez, Traditional Values Coalition, Mem. to Assem. Com.
on Pub. Safety Chair Mark Leno & Vice Chair Jay La Suer, June 27, 2003.)
But, in general, cooperatives are organizations that provide
services for use primarily by their members. (Gurnick, Consumer Cooperatives:
What They Are and How They Work (July/Aug. 1985) L.A. Lawyer, p. 23.) “Entities
such as production, service, purchasing, and marketing cooperatives engage on a
cooperative basis in producing or procuring goods, services or supplies for
members and patrons and promoting use of their members' products and services.”
(Ibid.) Cooperatives perform functions its individual members could not do
alone as effectively and conduct business for the mutual benefit of members.9
(Gurnick, at pp. 23, 24.)
The evidence here was Holistic obtained its business
licenses, was a nonprofit corporation, and was in the process of complying with
then applicable ordinances. The trial court thus found that Holistic was a
“legitimate” dispensary, which implies that the court believed Holistic was
complying with the appropriate laws.
The Attorney General does not argue otherwise, instead
maintaining that a medical marijuana cooperative seeking the protections of
section 11362.775 must establish that some number of its members participate in
the process in some way. The Attorney General does not specify how many members
must participate or in what way or ways they must do so, except to imply that
Holistic, with its 5,000 members and 14 growers, is simply too big to allow any
“meaningful” participation in the cooperative process; hence, it cannot be a
“cooperative” or a “collective” in the way section 11362.775 intended. But this
interpretation of section 11362.775 would impose on medical marijuana
cooperatives requirements not imposed on other cooperatives. A grocery
cooperative, for example, may have members who grow and sell the food and run a
store out of which the cooperative's products are sold. But not everyone who
pays a fee to become a member participates in the cooperative other than to
shop at it.
In fact, Holistic is similar to FloraCare, the cooperative
in Urziceanu, supra, 132 Cal.App.4th 747. The defendant, a qualified patient,
ran FloraCare from a house, which was also a marijuana grow site. (Id. at p.
764.) As a condition to membership in FloraCare, a person had to complete a
membership application, pay a $25 membership fee, and produce a valid
California driver's license or other identification and a physician's
recommendation. (Id. at pp. 760, 763.) FloraCare verified the information with
the physician unless the member had a card from another “club.” (Id. at p.
764.) The cooperative had “a few hundred” members, at least a dozen of whom
helped to grow the marijuana. Upwards of 15 members processed new members and
assisted with administrative duties. (Id. at p. 764.)10 Because FloraCare had
an insufficient supply of marijuana, the defendant sometimes bought it on the
black market to supply members. (Ibid.) Marijuana was given away for free,
although some marijuana products had a suggested donation value. (Id. at pp.
764, 767.) FloraCare members also testified, among other things, that they were
qualified patients who obtained marijuana from FloraCare for personal medical
use; that they believed they belonged to a cooperative; and that they owned a
number of the plants FloraCare grew. Based on this evidence, Urziceanu found
that the jury should have been instructed on a defense under the MMPA.
Although the Attorney General argues that the facts in
Urziceanu more strongly support a defense under section 11362.775 than the
facts here, the facts are not so dissimilar that we can say one case is
stronger than the other. Like FloraCare, Holistic required potential members to
produce a valid doctor's recommendation or prescription and identification.
Like FloraCare, applicants for membership in Holistic had to fill out an
application and pay a membership fee. True, FloraCare was a smaller operation with
“a few hundred” members, as opposed to Holistic's 5,000 members. And some
FloraCare members assisted in the growing process, while Colvin did not testify
to what extent Holistic members helped with the cultivation process, other than
the 14 members who cultivated marijuana. But section 11362.775 does not, on its
face, permit the former and disallow the latter based on the cooperative's size
and the extent to which members participate in it.
Moreover, an important distinguishing fact between FloraCare
and Holistic is that FloraCare relied on black market sources to fill supply
gaps whereas all marijuana distributed to Holistic members is grown by its
members. Such a “closed system” not only more closely models the traditional
notion of a cooperative, but it also complies with the California Attorney
General's Guidelines for the Security and Non-diversion of Marijuana Grown for
Medical Use (Aug. 2008)
(<http://ag.ca.gov/cms_attachments/press/pdfs/n1601_medicalmarijuanaguidelines.pdf>
[as of Feb. 23, 2012]) (hereafter Guidelines).11 Those Guidelines advise
cooperatives not to buy marijuana from or sell to nonmembers, and cooperatives
“should only provide a means for facilitating or coordinating transactions
between members.” (Guidelines, § IV.A.1, 2, p. 8.) “Nothing allows marijuana to
be purchased from outside the collective or cooperative for distribution to its
members. Instead, the cycle should be a closed-circuit of marijuana cultivation
and consumption with no purchases or sales to or from non-members.” (Id., §
IV.B.4, p. 10.)
Section 11362.81, subdivision (d), of the MMPA, directs the
Attorney General to develop and adopt appropriate guidelines to ensure the
security and nondiversion of marijuana grown for medical use by patients
qualified under the CUA.
Holistic complied with other guidelines. Holistic, for
example, is a nonprofit registered with the City of Los Angeles in 2007, and
Colvin took steps to comply with applicable ordinances (Guidelines, supra, §
IV.A.1, 2, B.1, 2, pp. 8, 9 [advising cooperatives to incorporate under the
Corp. Code or Food & Agr. Code and to obtain applicable business licenses
and permits]); Holistic requires members to fill out membership forms, assigns
each member a number to track prescription expiration, and keeps a record of
members' medical problems and each time a member returns (id., § IV.B.3, p. 9
[potential members should complete a written membership application, their
status should be verified, membership records should be maintained, and
expiration of prescriptions should be tracked]); all money Holistic receives
from members goes back into the cooperative (id., § IV.B.5, p. 10 [“[a]ny
monetary reimbursement that members provide to the collective or cooperative
should only be an amount necessary to cover overhead costs and operating
expenses”]); Holistic bases membership fees on the cost to cover the member's
needs (id., § IV.B.6, p. 10 [marijuana may be allocated based on fees that are
reasonably calculated to cover overhead costs and operating expenses]); Colvin
was transporting only one pound of marijuana (id., § IV.B.7, p. 10
[“collectives and cooperatives may cultivate and transport marijuana in
aggregate amounts tied to its membership numbers”]); and Holistic employs
security measures, namely, it keeps new applicants in a “primary holding” area
and verifies their information before admitting them and has no more than two
to three pounds of marijuana on the premises at any given time (id., § IV.B.8,
p. 11 [collectives and cooperatives should take security measures to protect
patients and surrounding neighborhoods]). Thus, to the extent these guidelines
have any weight, they contemplate cooperatives like Holistic.
Taken to its logical conclusion, an effect of imposing the
Attorney General's suggested requirement likely would be to limit drastically
the size of medical marijuana establishments. It may be that the Legislature,
in trying to implement voters' wishes, envisioned small community or
neighborhood marijuana gardens. That may be good policy. But nothing on the
face of section 11362.775, or in the inherent nature of a cooperative or
collective, requires some unspecified number of members to engage in
unspecified “united action or participation” to qualify for the protection of
section 11362.775. If such a requirement is what the Legislature intended, then
it can say so; but the Attorney General's vague qualifier provides little
direction or guidance to, among others, qualified patients, primary caregivers,
law enforcement, and trial courts. Rather, imposing the Attorney General's
requirement would, it seems to us, contravene the intent of the MMPA by
limiting patients' access to medical marijuana and leading to inconsistent
applications of the law.
We therefore conclude that section 11362.775 applies to
count 2, transportation of marijuana. And to the extent section 11362.775
applies to count 2 for transportation of marijuana, it also applies to count 3
for possession of concentrated cannabis,12 and the Attorney General does not
argue otherwise. (§ 11357, subd. (a).) The judgment on those counts must be
reversed.13
FOOTNOTES
12 Concentrated cannabis is the “separated resin, whether
crude or purified, obtained from marijuana.” (§ 11006.5.)
13 Because we conclude that section 11362.775 applies to
Colvin, we do not address his alternative due process argument.
DISPOSITION
The judgment on counts 2 and 3 is reversed.
Klein, P. J., and Kitching, J., concurred.
Respondent's petition for review by the Supreme Court was
denied May 23, 2012, S200786.
FOOTNOTES
1 All undesignated statutory references are to the Health
and Safety Code.
2 It is unclear whether Colvin is paid $400 total per week
or $400 per week from each of the two Holistic establishments.
3 Many individuals also grow marijuana for themselves at
home.
4 The patient declares that: “ ‘I am a qualified patient
under California Health and Safety Code section[] 11362.5, 11362.7 et seq., and
my doctor has recommended, prescribed and approved my use of medical marijuana.
As per California Health and Safety Code section 11362.51, I am legally able to
use, possess and cultivate cannabis for medical purposes. I understand that I
am allowed to do so through safe and affordable access such as the type
provided by Hollywood Holistic. I therefore designate Hollywood Holistic as my
care provider for this purpose. In doing so, I agree to sign and follow all
Hollywood Holistic rules and regulations regarding their services.’ ”
5 Colvin also had Vicodin pills and cocaine. Colvin was not
charged with any crime relating to the Vicodin, and he does not challenge on
appeal his sentence on count 1, relating to his cocaine possession.
6 “In a case tried by the court without a jury, … the court
on motion of the defendant or on its own motion shall order the entry of a
judgment of acquittal of one or more of the offenses charged in the accusatory
pleading after the evidence of the prosecution has been closed if the court,
upon weighing the evidence then before it, finds the defendant not guilty of
such offense or offenses. If such a motion for judgment of acquittal at the
close of the evidence offered by the prosecution is not granted, the defendant
may offer evidence without first having reserved that right.” (Pen. Code, §
1118.)
7 The Legislature also enacted section 11362.765, which
provides:
“(a) 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, 11358, 11359, 11360, 11366,
11366.5, or 11570. However, nothing in this section shall authorize the
individual to smoke or otherwise consume marijuana unless otherwise authorized
by this article, nor shall anything in this section authorize any individual or
group to cultivate or distribute marijuana for profit.
“(b) Subdivision (a) shall apply to all of the following:
“(1) A qualified patient or a person with an identification
card who transports or processes marijuana for his or her own personal medical
use.
“(2) A designated primary caregiver who transports,
processes, administers, delivers, or gives away marijuana for medical purposes,
in amounts not exceeding those established in subdivision (a) of Section
11362.77, only to the qualified patient of the primary caregiver, or to the
person with an identification card who has designated the individual as a
primary caregiver.
“(3) Any individual who provides assistance to a qualified
patient or a person with an identification card, or his or her designated
primary caregiver, in administering medical marijuana to the qualified patient
or person or acquiring the skills necessary to cultivate or administer
marijuana for medical purposes to the qualified patient or person.
“(c) A primary caregiver who receives compensation for
actual expenses, including reasonable compensation incurred for services
provided to an eligible qualified patient or person with an identification card
to enable that person to use marijuana under this article, or for payment for
out-of-pocket expenses incurred in providing those services, or both, shall
not, on the sole basis of that fact, be subject to prosecution or punishment
under Section 11359 or 11360.”
8 It is not clear the trial court was using the word
“dispensary” in anything but a general, colloquial sense, rather than a formal
legal one. We refer broadly to cooperatives, collectives, and dispensaries
without distinguishing between technical differences that may exist between
them.
9 Under California law, agricultural cooperatives consist of
three or more natural persons who are engaged in the production of
horticultural and related products (Food & Agr. Code, § 54004), and who
“form an association pursuant to this chapter for the purpose of engaging in”
agriculture-related activities (Food & Agr. Code, § 54061). Consumer
cooperatives consist of members who associate and form a corporation “for any
lawful purpose provided that it shall be organized and shall conduct its
business primarily for the mutual benefit of its members as patrons of the
corporation.” (Corp. Code, § 12201.)
10 It is unclear whether all or some of the members who grew
marijuana were the same members who assisted with administrative duties.
11 Those guidelines are entitled to considerable weight but
do not bind us. (People v. Hochanadel (2009) 176 Cal.App.4th 997, 1011 [98 Cal.
Rptr. 3d 347].)
