Court of Appeals of California, Fourth District, Division One.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

BENKE, Acting P. J.

Michael Wilder was convicted of one count of possessing marijuana for sale in violation of Health and Safety Code 1 section 11359 and one count of cultivating marijuana in violation of section 11358. At trial, Wilder asserted he had a good faith but mistaken belief his sale of marijuana to an acquaintance was permitted under the terms of a local ordinance which he believed defined him as a "caregiver" for his acquaintance within the meaning of the Compassionate Use Act of 1996 (Compassionate Use Act), section 11362.5 et seq. On appeal, he argues he should have been permitted to put on evidence of his good faith mistake and the jury should have been instructed that a good faith mistake of law on his part was a defense to the sale allegation.

At trial, Wilder further asserted his cultivation of marijuana was for his personal use and the personal use of other members of a marijuana collective and thus lawful under the terms of the Compassionate Use Act. On appeal, he argues the trial court erred in instructing the jury with respect to limits the Medical Marijuana Program (MMP), section 11362.7 et seq., sets on the amount of marijuana a "qualified patient" may possess or cultivate.

We affirm Wilder's conviction of possession of marijuana for sale. The law does not recognize a defendant's mistake of law as a defense to criminal conduct.

However, we reverse Wilder's conviction on the cultivation count. Wilder was injured while playing football in college and testified he uses marijuana in lieu of prescription narcotics to control the residual pain he experiences. At trial, Wilder presented testimony from a marijuana expert who concluded that a patient with Wilder's symptoms needs between a half pound and a pound of marijuana a month, and that Wilder's share of the plants being cultivated at the greenhouse Wilder was operating would produce about that amount. However, at trial the trial court instructed the jury that under the terms of the MMP a patient may possess no more than six mature marijuana plants and 12 immature plants, unless a doctor has recommended that the patient's medical needs are greater. In giving this instruction, the trial court erred. In People v. Kelly (2010) 47 Cal.4th 1008, 1043, the Supreme Court held the numerical limits prescribed by the MMP do not govern the more general standard set forth by the voters when they adopted the Compassionate Use Act as an initiative measure. As we explain, in light of the expert testimony Wilder provided, and the instruction's likely impact on the jury's consideration of that testimony, this error was prejudicial.

Finally, we reject Wilder's contentions that the trial court erred in admitting text messages sent to and from Wilder's cell phone and in excluding evidence Wilder offered about a prosecution witness's drug dealing.

FACTUAL AND PROCEDURAL BACKGROUND

In November 2007 Wilder was operating a marijuana greenhouse inside a commercial suite in a building which police had under surveillance. With Wilder's consent, police investigators inspected the suite and found: six large "mother" marijuana plants, three to seven feet tall; 87 medium sized marijuana plants, three to five feet tall; and 138 small "clone" marijuana plants, three to six inches tall. The investigators found approximately six and one-half ounces of a dried marijuana in a can, a methamphetamine pipe, two digital scales, and a box of sandwich baggies which are often used to package marijuana. On a wall inside the suite the police found a "pay and owe" sheet, which listed seven names, monetary amounts and weights. Other "pay and owe" sheets the police found in the suite made reference to four other individuals.

Police arrested Wilder and searched his truck. In Wilder's truck police found another methamphetamine pipe and an unsigned lease agreement which named Wilder as the lessee of the suite where the marijuana was being grown. During a further investigation, police found a number of text messages on Wilder's cell phone which appeared to make reference to the sale of marijuana to three individuals.

As we indicated, Wilder was charged with one count of possessing marijuana for sale and one count of cultivating marijuana. Wilder testified at trial on his own behalf. Wilder testified he used marijuana to alleviate residual pain from injuries he suffered while playing college football. Wilder stated he had become addicted to prescription painkillers and turned to marijuana as an alternative. In 2006 he obtained a written recommendation from a physician that he use marijuana to treat his pain. Wilder testified that he used marijuana in an edible form and that he benefitted from it.

In February 2007 Wilder, Dean Skurky and Sam Mohaisen formed a marijuana collective. Wilder believed Skurky and Mohaisen had appropriate recommendations for the medical use of marijuana. According to Wilder, he was primarily responsible for taking care of the marijuana plants, while Skurky and Mohaisen were responsible for paying rent and utilities and furnishing building materials.

At trial, Wilder admitted that on a couple of occasions in November 2007 he provided marijuana to an acquaintance, Michael Olsen. According to Wilder, Olsen had a recommendation from a physician that Olsen use marijuana for medicinal purposes and Olsen signed a document identifying Wilder as his caregiver. Wilder testified that, other than Olsen, he did not provide marijuana to anyone outside the collective.

In his defense, Wilder also presented testimony from an expert in growing and harvesting marijuana for medical purposes and a medical expert. Wilder's growing and harvesting expert testified the garden Wilder maintained was an amateur design, that only half of the small or clone plants were viable and that the remaining flowering plants would produce between nine and 12 pounds of marijuana a year.

The growing and harvesting expert testified that typically patients who use marijuana for pain eat it rather than smoke it and that consequently they use more marijuana than recreational marijuana smokers. The expert further testified that patients who are using marijuana as an alternative to prescription painkillers use more than recreational users because of their tolerance to palliative substances. The expert testified that on average medical marijuana patients use six pounds of marijuana a year.

Wilder's medical expert testified he recommended that Wilder use marijuana as an alternative to the opiates he was using to alleviate pain. The medical expert did not recommend a specific amount for Wilder or any of his patients but instead recommended an amount consistent with his patient's needs. The expert believed that a patient with Wilder's symptoms would use between five to seven ounces of marijuana a week or 16 to 22 pounds a year, if he ingested it in an edible form.

The trial court rejected Wilder's request that it instruct the jury that he was not guilty of possessing marijuana for sale if he had a good faith, but mistaken, belief that he could act as a caregiver for patients such as Olsen and lawfully provide them with marijuana. Consistent with the requirements of the MMP, the trial court instructed the jury that "[a] qualified patient may possess no more than eight ounces of dried marijuana. In addition, the qualified patient may also maintain no more than six mature and/or 12 immature marijuana plants." The trial court further instructed the jury that "[i]f a qualified patient has a doctor's recommendation that this quantity does not meet the qualified patient's medical needs, the qualified patient may possess an amount of marijuana consistent with the patient's needs."

As we indicated at the outset, the jury found Wilder guilty of one count of possessing marijuana for sale in violation of section 11358 and one count of cultivating marijuana in violation of section 11359. Wilder received three years of formal probation.

DISCUSSION

I

With respect to his conviction of possessing marijuana for sale, Wilder contends the trial court erred in refusing to instruct the jury that if he had a good faith belief based on provisions of the San Diego Municipal Code that he could act as Olsen's primary caregiver, he acted lawfully in providing Olsen with marijuana. We find no error.

A. Caregiver Status

Section 11362.5, subdivision (e), which was enacted by the voters as part of the Compassionate Use Act, permits "primary caregivers" to provide medical marijuana to patients for whom a physician has recommended marijuana as a treatment.

In 2001 the City of San Diego adopted the San Diego Medical Cannabis Voluntary Verification Card Program. (San Diego Mun. Code, § 42.1301 et seq.) (Card Program.) San Diego adopted the Card Program as a means of establishing a verification program that would be administered by an external contracting agency. (San Diego Mun. Code, § 42.1301, subd. (a)(1).) Under the Card Program, medical marijuana patients and primary caregivers who have valid verification cards are not subject to arrest by members of the San Diego Police Department for possession or sale of marijuana so long as such possession or sale is otherwise consistent with the requirements of the Card Program. (San Diego Mun. Code, § 42.1305.)

As the Attorney General points out, by its terms the Card Program imposes a number of procedural requirements on patients and primary caregivers. Patients under the program must present a statement from a physician and show proof of identity and sign a waiver stating that they have received a copy of the ordinance, understand its applicability and limitations, and agree to hold the city and its contractor harmless for any injury that results from participation in the Card Program. (San Diego Mun. Code, § 42.1306, subd. (a)(3).)

Primary caregivers under the Card Program are required to submit a criminal background check which shows they are not on parole or probation, have not been convicted of any serious or violent felony, and have not been convicted of the felony sale of illegal drugs. (San Diego Mun. Code, § 42.1306, subd. (b)(2).) Primary caregivers must also appear with the patients for whom they serve as caregivers and the patients must sign and complete a certificate designating the primary caregiver as such in the presence of a staff member of the program. (San Diego Mun. Code, § 42.1306, subd. (b)(3).) Primary caregivers must also complete all training and instruction required by the city of the contracting agency. (San Diego Mun. Code, § 42.1307, subd. (a).)

In addition to the foregoing, the Card Program defined a primary caregiver as including a person "whose only responsibility for the patient's health care is the provision of medical cannabis, provided that the primary caregiver is the patient's sole provider of medical cannabis." (San Diego Mun. Code, § 42.1302.)

The Legislature enacted the MMP in 2003 and it established a card verification program similar to the Card Program. (See § 11362.5 et seq.) The MMP requires that county health departments issue patient and caregiver cards to medical marijuana users and their caregivers. However, the MMP defines caregivers more narrowly than the city's Card Program. Under the MMP, a "caregiver" "means the individual, designated by a qualified patient or by a person with an identification card, who has consistently assumed responsibility for the housing, health, or safety of that patient or person." (§ 11362.7, subd. (d).) There is no dispute that at all relevant times the County of San Diego had not established a process by which medical marijuana users in the county could apply for the verification cards required by the MMP. (See County of San Diego v. San Diego NORML (2008) 165 Cal.App.4th 798, 812-813.)

In 2008 the Supreme Court in People v. Mentch (2008) 45 Cal.4th 274, 282-287, rejected a defendant's contention he could act as a caregiver within the meaning of the Compassionate Use Act by simply being the source of a patient's marijuana. Rather, the court held that under the express terms of section 11362.5, subdivision (e), a caregiver must be someone "`who has consistently assumed responsibility for the housing, health, or safety of''" the patient. (Id. at p. 283.) Thus, in order to assert the defense provided by section 113625, subdivision (e), a primary caregiver "must establish he or she satisfies the responsibility clause based on evidence independent of the administration of medical marijuana." (Id. at p. 284.)

B. Mistake of Law/Mistake of Fact Defense

The record is clear that Wilder never provided or took responsibility for Olsen's housing, health or safety. Nonetheless, he argues on appeal that notwithstanding the fact his relationship with Olsen did not meet the requirements of People v. Mentch, in providing marijuana to Olsen he was entitled to rely on the broader definition of primary caretaker set forth in the city's Card Program. As we indicated at the outset, we reject this argument.

In general, a defendant is not entitled to assert a mistake of law as a defense. (See 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Defenses, § 37, pp. 368-369.) "`If the act itself is punishable when knowingly done, it is immaterial that the defendant thought it was lawful.' [Citation.] Criminal intent in a general intent crime `is merely the intent to commit the prohibited act, not the intent to violate the law.' [Citation.] For example, in People v. Young (2001) 92 Cal.App.4th 229, 235, 237, the Court of Appeal held the defendant's belief that the marijuana he was carrying was medicine under the Compassionate Use Act of 1996 . . . and therefore he was acting legally was a mistake of law, which was not a defense to the general intent crime of transporting marijuana. `"`It is an emphatic postulate of both civil and penal law that ignorance of a law is no excuse for a violation thereof. Of course it is based on a fiction, because no man can know all the law, but it is a maxim which the law itself does not permit anyone to gainsay.'"' [Citation.]" (People v. Cole (2007) 156 Cal.App.4th 452, 483.) On the other hand, "[m]istake of law can be a valid defense when the crime requires specific intent if the mistake of law negates the specific intent of the crime. [Citation.] But because section 25210 is a general intent crime—not a specific intent crime—mistake of law is not a defense to the crime." (Ibid., italics added.)

Admittedly, the crime of possession of marijuana for sale requires proof the defendant had the specific intent to sell marijuana. (People v. Peck (1996) 52 Cal.App.4th 351, 357.) However, the primary caregiver exemption provided by the Compassionate Use Act, and interpreted in an overbroad manner by the city's Card Program ordinance, is not related to the specific intent to sell marijuana. The primary caregiver exemption is a defense to the crime of possession for sale and assumes the specific intent the defendant in fact intended to sell marijuana to his or her patient. Thus the general rule applies here and Wilder was not entitled to present evidence about or receive an instruction on his mistaken belief that he was Olsen's primary caregiver.

II

As we have noted, the jury was instructed with the numerical limits provided by the MMP on the number of plants and amount of marijuana patients and caregivers may possess. With respect to Wilder's cultivation conviction, the Attorney General concedes the instruction was erroneous under People v. Kelly, supra, 47 Cal.4th at page 1049. In People v. Kelly the court held the prosecution could not use the MMP's numerical limits to suggest a defendant had exceeded the amounts permitted by the Compassionate Use Act. (Id. at pp. 1046-1049.) Such a use of the MMP would amount to a legislative amendment of an initiative statute adopted by the people and thereby violate of article II, section 10, subdivision (c) of the California Constitution. (Ibid.)

Nonetheless, the Attorney General argues the instruction was not prejudicial in light of the other evidence police found which indicated Wilder was not cultivating the marijuana solely for his own use but was engaged in marijuana trafficking, to wit: the sales to Olsen, the "pay and owe" sheets recovered from the greenhouse, the text messages retrieved from Wilder's cell phone, as well as the digital scales and plastic baggies typically used to market marijuana. Notwithstanding this evidence, the instruction was prejudicial with respect to Wilder's cultivation conviction.

Although our Supreme Court has not yet directly addressed the issue, 2 where, as here, the court has improperly instructed the jury with respect to the defense to a crime, we are required to apply the Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824] (Chapman) test for prejudice (i.e., reversal required unless error was harmless beyond a reasonable doubt) instead of the less rigorous People v. Watson (1956) 46 Cal.2d 818 test for prejudice (i.e., reversal not required unless it is reasonably probable the defendant would have obtained a more favorable result had the error not occurred). The Due Process Clause of the Fourteenth Amendment to the Unites States Constitution "require[s] that criminal defendants be afforded a meaningful opportunity to present a complete defense." (California v. Trombetta (1984) 467 U.S. 479, 485 [104 S.Ct. 2528].) That opportunity is denied when the court erroneously instructs on an affirmative defense that is supported by substantial evidence. (See People v. Tilehkooh (2003) 113 Cal.App.4th 1433, 1445 [finding a due process violation in trial court's refusal to allow defendant to rely on statute allowing possession of marijuana for medical purposes as defense to allegation of violation of obey all laws condition of probation].)

Here, although the evidence the Attorney General relies on could certainly sustain an inference Wilder was engaged in trafficking, Wilder testified the marijuana he grew was for his personal use and he presented evidence from his experts that his share of the marijuana found at the greenhouse was no more than what he needed to treat his pain. Under Chapman, this conflict in the evidence prevents us from affirming Wilder's conviction. Under Chapman there must be such overwhelming evidence with respect to the issue covered by the erroneous instruction that the record compels us to conclude beyond a reasonable doubt that the erroneous instruction "`must have made no difference in reaching the verdict.'" (People v. Harris (1994) 9 Cal.4th 407, 431.) Here, given the conflict between the evidence of trafficking on the one hand and Wilder's testimony and the opinions of Wilder's experts on the other, we cannot say there is such overwhelming evidence of trafficking that the erroneous instruction played no part in the jury's verdict. Accordingly, Wilder's conviction for cultivation must be reversed. 3

III

Wilder also challenges the trial court's admission of the text messages found on his cell phone. He argues that they were inadmissible hearsay. We find no error.

As the Attorney General notes, the messages were apparent requests to buy drugs, apparent offers to sell drugs, and apparent requests to meet to use or buy drugs. The texts were admissible over Wilder's hearsay objection on a number of theories. First, because the texts were in the form of requests or offers, arguably they were not hearsay. "Because a request, by itself, does not assert the truth of any fact, it cannot be offered to prove the truth of the matter stated." (People v. Jurado (2006) 38 Cal.4th 72, 117; see also People v. Garcia (2008) 168 Cal.App.4th 261, 289, People v. Reyes (1976) 62 Cal.App.3d 53, 67.) Similarly, "[a] declarant's words of direction or authorization do not constitute hearsay since they are not offered to prove the truth of any matter asserted by such words." (People v. Reyes, supra, 62 Cal.App.3d at p. 67.)

On the other hand, cases have treated requests and directions as implied hearsay statements. (See People v. Garcia, supra, 168 Cal.App.4th at p. 289; People v. Morgan (2005) 125 Cal.App.4th 935, 943.) "While the ultimate fact the statement is offered to prove is not the matter stated, the truth of the implied statement is a necessary part of the inferential reasoning process." (People v. Morgan, supra, 125 Cal.App.4th at p. 943.) Here for instance, very much implied in the requests and offers in the texts is the fact Wilder had marijuana for sale. 4

However, even if we treated the text messages as implied hearsay, they would be subject to two exceptions to the hearsay rule. First, all the text messages are against the penal interest of the respective senders and therefore admissible under Evidence Code section 1230. (See People v. Garcia, supra, 168 Cal.App.4th at p. 289.) The text messages are also subject to the hearsay exception the court recognized in People v. Morgan for implied hearsay. (See People v. Morgan, supra, 125 Cal.App.4th at pp. 945-946.) In People v. Morgan while detectives were searching a home for drugs, the telephone rang, a detective answered the telephone and the caller asked to buy drugs. The court in People v. Morgan found that while the request was hearsay, because the caller plainly had no intention of communicating to the officer the fact the occupant of the home was selling drugs, the statement implied in the request had the high degree of reliability needed to justify an exception to the hearsay rule. "The caller was not intending to assert that [the defendants] were selling methamphetamine; rather, he was attempting to purchase methamphetamine. Because actions speak louder than words, the caller's statements were more reliable than the usual hearsay statement." (People v. Morgan, supra, 125 Cal.App.4th at p. 944.) The same is true here: none of the senders of the text messages intended to assert that Wilder was selling marijuana; rather, the senders, including Wilder, were attempting to buy or sell it. As actions with greater reliability than hearsay, the messages were therefore admissible. (Ibid.)

In addition to his hearsay argument, Wilder contends that admission of the text messages also infringed on his confrontation rights under the Sixth Amendment of the United States Constitution. We reject this contention as well. The text messages between buyers, sellers and users of drugs, were in no sense testimonial and hence not subject to the limitations of the confrontation clause. (See People v. Morgan, supra, 125 Cal.App.4th at pp. 946-947.)

IV

Finally, Wilder contends that the trial court erred in preventing him from introducing evidence that Skurky, one of his partners in the collective and a prosecution rebuttal witness, was selling marijuana from the location of the greenhouse up to the time of trial.

A. Background

Skurky was called as a rebuttal witness. Skurky testified, under a grant of immunity, that he and Mohaisen had paid between $2,500 and $3,000 for the lights and equipment for the greenhouse and that he had leased the space for the greenhouse in his name. Skurky also testified he sold marijuana that Wilder "fronted" him from the first crop of marijuana or grow and that he had prepared the "pay and owe" sheets detectives found at the greenhouse. Skurky testified his relationship with Wilder ended in the fall of 2007 when he got into a dispute with Wilder about money one of Skurky's customers owed the collective. Skurky admitted that up to the time Wilder was arrested he sold marijuana Wilder had grown.

Before Skurky took the stand, Wilder's counsel asked the court for permission to call witnesses who would testify that Skurky was still selling marijuana in the vicinity of the greenhouse at the time of the 2009 trial. Wilder argued that the evidence was needed to impeach Skurky's credibility in the event he testified that he was no longer selling marijuana.

B. Analysis

It is axiomatic that the trial court has discretion to exclude otherwise relevant evidence where its probative value is outweighed by the probability that it will unduly consume the court's time or confuse and mislead the jury. (Evid. Code, § 352.) "`"[T]he latitude section 352 allows for exclusion of impeachment evidence in individual cases is broad. The statute empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral issues." [Citation.]'" (People v. Harris (2008) 43 Cal.4th 1269, 1291.) "A trial court's ruling to admit or exclude evidence offered for impeachment is reviewed for abuse of discretion and will be upheld unless the trial court `exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.'" (People v. Ledesma (2006) 39 Cal.4th 641, 705.)

Here, impeachment evidence of a rebuttal witness, who was testifying under a grant of immunity because he conceded that he had in fact unlawfully sold marijuana in 2007, with evidence that he continued selling marijuana, was entirely collateral to the principal issue presented at trial and cumulative. The trial court did not abuse its discretion in excluding it.

DISPOSITION

Wilder's conviction of cultivating marijuana is reversed and remanded for further proceedings. Wilder's conviction of possessing marijuana for sale is affirmed.

WE CONCUR:

HALLER, J.

IRION, J.