Filed 6/16/17 P. v. Rodriguez CA5




NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

OTIS RODRIGUEZ,

Defendant and Appellant.

F071705

(Super. Ct. No. 1460189)


OPINION

APPEAL from a judgment of the Superior Court of Stanislaus County. Joseph R. Distaso, Judge.
Charles M. Bonneau III, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-


Otis Rodriguez was convicted of selling marijuana. He argues now that there were two errors in the jury instructions. He also contends that the trial court imposed a fee in error and overcharged him on another fee. The People concede that one fee was imposed in error and should be stricken. On the other fee, however, the People claim there actually was a mistake in Rodriguez’s favor, which we should correct.
We reject Rodriguez’s claims of instructional error. We will order stricken the fee the parties agree was inapplicable. As to the other fee, we agree with the People. We have calculated the correct amount and will modify the judgment accordingly. The judgment will be affirmed as modified.
FACTS AND PROCEDURAL HISTORY
On January 24, 2014, the district attorney filed an information charging Rodriguez with one count of selling, furnishing, administering, giving away, transporting or importing marijuana. (Health & Saf. Code, § 11360, subd. (a).) A jury trial commenced on March 10, 2015.
Thomas Moffett testified that he was a sergeant with the Modesto Police Department. As a narcotics investigator, he would look for operations selling illegal narcotics on the Web site Craigslist. On April 30, 2013, he found an advertisement offering for sale a type of marijuana known as GSK, which stood for Girl Scout Kookies. The advertisement included a photo of marijuana, a price, a delivery fee, a telephone number, and a statement to the effect that the seller was in Modesto. At 11:25 that morning, Moffett sent a text message to the phone number. A document showing the ensuing exchange of text messages was admitted into evidence.
Moffett’s first message asked whether the recipient was doing deliveries that day. The recipient answered yes, and wrote “send info to verify.” Moffett texted: “green life 030374344653715.” There was no testimony about what this meant, but, as will be seen, Rodriguez now argues that it was a medical marijuana identification number. The recipient replied, “ur good,” and they proceeded to arrange a meeting at a Taco Bell in Modesto that afternoon. The recipient wrote, “How much were u gnna donate[?]” Moffett inquired “how much for a qtr[?]” and the recipient wrote “75 donation” plus $5 for gas.
Moffett testified that it was a “common method” among marijuana sellers to refer to the price as a donation. He said sellers think they can circumvent the law against selling marijuana if they call the price a donation.
Moffett placed a call to the same phone number around 2:30 p.m. A man answered and the call was recorded. The recording was played for the jury and a transcript of the conversation was admitted into evidence. Moffett said he was on the way to the Taco Bell. The man told him to look for a gold Ford Explorer.
Around 2:40 p.m., Moffett texted again and indicated he would be at the meeting place in a few minutes. The recipient texted back to ask whether Moffett was “ a cop,” and Moffett replied that he was not. Around 2:45 p.m., Moffett texted that he had arrived and was walking over. He was wearing a “body wire” to record the discussion during the transaction. The recording was played for the jury and a transcript was admitted into evidence. There also was a surveillance video recording of the transaction, which was played for the jury.
Moffett did not see a gold Ford Explorer in the Taco Bell parking lot. Instead, there was a gold Honda. Rodriguez was outside it, motioning Moffett to come over. Then he sat down in the driver’s seat. Moffett approached the open passenger window. In the passenger seat, next to Rodriguez, was another man, Cody Freeman. Moffett spoke with Rodriguez. Rodriguez had his knee in a brace and they talked about his injury. Moffett looked at the marijuana, approved its quality, and asked if they grew it themselves. Rodriguez replied that they did and were working on growing a better strain. He also told Moffett of a previous transaction in which the buyer had given him $2,000 in counterfeit money. Rodriguez handed two plastic bags containing marijuana to Freeman, who handed them to Moffett. Moffett handed $80 to Freeman.
The court read the jury a stipulation according to which the parties agreed that the substance in the plastic bags was 6.88 grams of marijuana. The stipulation also stated that the men in the car were Rodriguez and Freeman, that Moffett paid them $80 in police department funds for the marijuana, and that Freeman had previously pleaded no contest to a charge for his role in the sale.
On cross-examination, Moffett testified that Rodriguez and Freeman were not arrested immediately. The police department was interested in investigating further to find out if they were associated with other crimes related to marijuana cultivation and sales, such as power theft or unlawful possession of weapons or additional drugs. The department did investigate further but found nothing else.
Jon McGill, an investigator with the Modesto Police Department, testified about the costs of cultivating marijuana. When accounting for starter plants, materials and equipment, the costs would be about $1 per gram. Thus, in this case, the sum of the costs for the approximately seven grams sold would be around $7.
Freeman testified for the defense. He and his girlfriend made the Craigslist ad and the phone number on it was his. He claimed to be the person who communicated with Moffett when Moffett texted and called that phone number. Rodriguez went to the Taco Bell just to get something eat. Freeman asked Rodriguez for a ride, but did not tell him he planned to make a marijuana sale. Freeman handed the phone to Rodriguez to talk to Moffett during the ride, but only because Moffett was giving directions and Freeman was not good with directions. He said that if the transcript of the phone conversation did not include anyone giving directions, it was an incorrect transcript. Even after this, Freeman did not tell Rodriguez why he was meeting Moffett. By the time the sale was made, Rodriguez still believed Freeman was just meeting with “some random person.” Rodriguez did not hand the marijuana to Freeman. It came from Freeman’s pocket. When Moffett gave Freeman the money, he kept it and never shared it or anything he bought with it with Rodriguez. Rodriguez knew nothing about the sale or about Freeman’s marijuana. In fact, Rodriguez was inside the Taco Bell when the transaction happened. Rodriguez’s arrest was all his fault and he was sorry he caused it. Freeman also claimed he passed a lit marijuana cigarette to Moffett during the transaction, and Moffett took it and smoked. Freeman conceded that, on the day of the marijuana sale, he was high on marijuana, crystal meth, and heroin, and this could have affected his memory.
On cross-examination, Freeman admitted the following prior convictions: two second degree burglaries (one felony and one misdemeanor), having a dirk or dagger concealed on his person, and auto theft. He also admitted his conviction of selling marijuana in this case.
The jury found Rodriguez guilty as charged. The court sentenced him to three years’ felony probation, including, as a condition, a period of 210 days in custody. The sentence included several fees and fines which are detailed below.
DISCUSSION
I. Jury instructions
Rodriguez argues that the court erred when it did not, on its own motion, include the following in the jury instructions: (a) an instruction on a defense of collective or cooperative marijuana cultivation, for which CALCRIM No. 3413 provides a pattern; and (b) CALCRIM No. 224 or the equivalent on circumstantial evidence.
Rodriguez did not raise any objection on these issues at trial, but a trial court in a criminal case is required—with or without a request—to give correct jury instructions on the general principles of law relevant to issues raised by the evidence. (People v. Michaels (2002) 28 Cal.4th 486, 529-530.) Further, an appellate court can address an incorrect instruction to which no objection was made at trial if the instruction impaired the defendant’s substantial rights. (Pen. Code, § 1259.) As we will explain, the evidence in this case warranted neither of the instructions Rodriguez discusses now.
A. Collective or cooperative cultivation defense
The collective or cooperative cultivation defense is based on Health and Safety Code section 11362.775, which, in 2013 when the offense here was committed, provided as follows:
“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 ... 11360 ….” (Former § 11362.775.)
CALCRIM No. 3413 implements the defense in the following terms:
“(Planting[,] [or]/ cultivating[,] [or]/ harvesting[,] [or]/ drying[,] [or]/ processing) marijuana is lawful if authorized by the Medical Marijuana Program Act. The Medical Marijuana Program Act allows qualified patients [and their designated primary caregivers] to associate within the State of California to collectively or cooperatively cultivate marijuana for medical purposes, for the benefit of its members, but not for profit.
“In deciding whether a collective meets these legal requirements, consider the following factors:
“1. The size of the collective’s membership;
“2. The volume of purchases from the collective;
“3. The level of members’ participation in the operation and governance of the collective;
“4. Whether the collective was formally established as a nonprofit organization;
“5. Presence or absence of financial records;
“6. Accountability of the collective to its members;
“7. Evidence of profit or loss.
“There is no limit on the number of persons who may be members of a collective.
“Every member of the collective does not need to actively participate in the cultivation process. It is enough if a member provides financial support by purchasing marijuana from the collective.
“A qualified patient is someone for whom a physician has previously recommended or approved the use of marijuana for medical purposes.
“Collectively means involving united action or cooperative effort of all members of a group.
“Cooperatively means working together or using joint effort toward a common end.
“Cultivate means to foster the growth of a plant.
“[A primary caregiver is someone who has consistently assumed responsibility for the housing, health, or safety of a patient who may legally possess or cultivate marijuana.]
“The People have the burden of proving beyond a reasonable doubt that the defendant was not authorized to (plant[,] [or]/ cultivate[,] [or]/ harvest[,] [or]/ dry[,] [or]/ process) marijuana for medical purposes. If the People have not met this burden, you must find the defendant not guilty of this crime.” (CALCRIM No. 3413.)
For purposes of this defense, the membership of a medical marijuana collective need not be limited to persons who actively participate in cultivation of marijuana. A member can be a person who supports the collective financially by buying marijuana from it, just as members of a grocery store cooperative might simply be customers who have joined and shop there. (People v. Anderson (2015) 232 Cal.App.4th 1259, 1278-1280; People v. Jackson (2012) 210 Cal.App.4th 525, 537 (Jackson); People v. Colvin (2012) 203 Cal.App.4th 1029, 1039.) In other words, a lawful medical marijuana cooperative or collective can consist of some qualified persons who cultivate marijuana and other qualified persons who buy it from them.
Rodriguez argues that the essential elements of the defense, as applied here, are that (1) the parties to the transaction were qualified patients or caregivers; (2) the marijuana was sold as part of the cultivation activity of a collective or cooperative group; and (3) the sale was not for profit. In the context of medical marijuana defenses, it has been held that the defendant’s burden is only to raise a reasonable doubt as to whether the elements of a defense have been proven. (Jackson, supra, 210 Cal.App.4th at p. 533.) Rodriguez maintains that sufficient evidence of each of the elements was presented to warrant consideration by the jury and allow it to find a reasonable doubt had been raised.
We do not think so. On the first element, qualified patient or caregiver, Rodriguez relies on two items of evidence: the exchange of text messages in which the seller asked for “info to verify” and Moffett answered with a number; and the fact that the seller advertised openly on Craigslist. But neither of these things had a significant tendency to show that Rodriguez was a qualified patient or caregiver. The jury was given no information at all about what the number or its verification might mean. Even if there had been evidence that it was some form of medical marijuana identification number, there would be no tendency to establish that Rodriguez was a qualified patient or caregiver. The evidence would tend to show at most that he was interested in selling to medical marijuana patients, perhaps as a means of screening out police officers or at least keeping a low profile by avoiding sales to recreational users. The brazenness of the advertising showed nothing about Rodriguez’s status as a qualified patient or caregiver. There was no evidence that the Craigslist posting said anything about the seller being a cooperative or collective or the marijuana being sold only to or by qualified persons.
On the second element, the transaction being tied to collective or cooperative cultivation, Rodriguez relies on the statement made during the sale transaction that the sellers grew the marijuana themselves. He says that this, combined with the request for a medical marijuana number, implied the existence of a collective or cooperative consisting of qualified persons, which the sellers would reasonably think Moffett was undertaking to join by way of making his first purchase. This argument depends on the notion that the request for an identification number from the buyer implied qualified-person status on the part of the sellers, a notion we have already rejected. Without that notion, the statement about the sellers growing the marijuana themselves had nothing to do with a medical marijuana collective or cooperative.
On the third element, a nonprofit sale, Rodriguez relies on the statement during the transaction that the sellers were trying to grow a better strain of marijuana. He says this would “take money,” and thus prevent the earning of a profit. He also says the police investigator’s testimony that some of the costs of growing the seven grams would add up to only $7 did not prove there was a profit on the sale.
The first point—that the sellers said they were working on growing better marijuana—obviously had no bearing on whether they were turning a profit. They could have been aiming at a profit on the new strain as well as the old.
The second point—that the investigator’s evidence did not prove there was a profit—is correct. The cost calculation did not include labor, for instance. But this is unhelpful to Rodriguez. The question is whether the record raised a reasonable doubt regarding the existence of each element of the offense. While the evidence showing $80 of revenue and $7 for some of the costs did not suffice to prove there was a profit, it naturally did not tend to show the sale was not for profit either.
Finally, any error in not giving a sua sponte instruction on the collective cultivation defense was harmless under any standard. (Chapman v. California (1967) 386 U.S. 18, 24 [standard for harmless federal constitutional error]; People v. Watson (1956) 46 Cal.2d 818, 836 (Watson) [standard for harmless state law error].) There was virtually no chance a jury would acquit Rodriguez under this defense based on the exceedingly slight evidence he cites in this appeal even if the instruction had been given. This is especially clear in light of the fact that Rodriguez’s trial counsel never tried to persuade the jury that the sale had anything to do with a medical marijuana cultivation cooperative.
B. Circumstantial evidence
Rodriguez maintains the court should have instructed the jury in accordance with CALCRIM No. 224, which states:
“Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.
“Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.” (CALCRIM No. 224.)
A trial court must give this instruction on its own motion if the prosecution substantially relies on circumstantial evidence to establish any element of the crime, including the element of intent. (People v. Yrigoyen (1955) 45 Cal.2d 46, 49-50.) There is no sua sponte duty to give the instruction if the circumstantial evidence is merely incidental to and corroborative of the direct evidence. (People v. Marlbrough (1961) 55 Cal.2d 249, 250-251.) Rodriguez did not request the instruction.
Rodriguez concedes that all the elements of the offense in this case were supported by direct evidence: Moffett testified that he negotiated and carried out the sale personally with Rodriguez, face-to-face. In spite of this, Rodriguez says the prosecution substantially relied on circumstantial evidence because the prosecutor, in her closing argument, proposed an alternative theory of guilt the jury could accept if it believed Freeman’s testimony:
“You know, even if you are to believe the portion where Cody says, ‘You know I didn’t tell Mr. Rodriguez what I was planning to do at the Taco Bell, I merely asked him to give me a ride there,’ well, we see in the surveillance video that, you know, Mr. Rodriguez is sitting in that car. He’s sitting in the car during the entire transaction. And, you know, he’s got to be hearing what’s going on. In fact, you see his head turned toward where Investigator Moffett is standing. He’s paying attention to what’s going on. And after the marijuana sale occurs, he drives away. So he’s driving the person who also participated in the crime away from the crime scene.”
Rodriguez says the effect of this argument was to urge the jury to consider the video as circumstantial evidence of his intent to participate in the sale as an aider and abettor. He adds that if the jury believed Freeman’s testimony that Moffett smoked marijuana during the transaction, this would have increased the likelihood that it would rely on evidence other than his testimony to support its finding of guilt.
We will assume for the sake of argument that the prosecutor’s alternative theory required an inference that silently listening to the transaction and driving away afterward showed a criminal intent, and that the necessity of this inference means the evidence was circumstantial, not direct. But we reject the suggestion that by presenting this alternative theory, the prosecution was substantially relying on circumstantial evidence. The direct evidence of guilt was overwhelming. Further, Freeman was a spectacularly unpersuasive witness. His story—that Rodriguez headed off to Taco Bell for lunch and Freeman tagged along, but then Rodriguez could not get there without directions from a marijuana buyer to whom Freeman coincidentally was talking to at the time, directions that failed to make it into the transcript of the phone call, and finally the buyer happened to show up at the same Taco Bell to do the deal with Freeman—was ridiculous. His credibility, as a witness who was intoxicated on three drugs at the time of the sale, who had already pleaded no contest to the same crime, and who had several priors, was not likely to rate high with the jury. The prosecution’s reliance on the alternative theory was minor to the point of insignificance.
For similar reasons, any error in omitting the instruction was harmless. (Watson, supra, 46 Cal.2d at p. 836.) There is no reasonable probability that the jury needed to resort to the alternative theory and thus none that it relied substantially (or at all) on the purported circumstantial evidence.
II. Fees
At sentencing, the trial court imposed the following fees and fines: $300 restitution/probation revocation fine (Pen. Code, §§ 1202.4, 1202.44); $200 attorney fee; $30 court assessment fee (Gov. Code, § 70373); $40 court security fee; $450 probation costs fee (Pen. Code, § 1203.1b); $135 laboratory analysis fee (Health & Saf. Code, § 11372.5); $150 drug program fee (Health &Saf. Code, § 11372.7); $70 AIDS education fee.
A. AIDS education fee
Rodriguez argues that the $70 fee the court imposed to fund an AIDS education program was unauthorized. He cites a statute, Penal Code section 1463.23, that authorizes a payment of $50 out of certain fines to a fund for AIDS education, but none of the fines listed there were assessed in this case, and in any event the $50 is not a separate fee to be added to others. The People suggest that the court was thinking of Health and Safety Code section 11377, which prohibits unauthorized possession of certain controlled substances. Subdivision (c) of that section authorizes imposition of a $70 fine for AIDS education. As the People acknowledge, however, this statute did not authorize the fee because Rodriguez was not convicted under it. The parties thus agree that the $70 fee for AIDS education was unauthorized and must be stricken. We agree and will modify the judgment accordingly.
B. Laboratory analysis fee
Health and Safety Code section 11372.5 authorizes a laboratory analysis fee of $50. The court, however, imposed a fee of $135 under this statute. Rodriguez argues that we must reduce the assessment to $50.
The People acknowledge that Health and Safety Code section 11372.5 by itself authorizes a fee of only $50. They maintain, however, that the imposition of this $50 fee triggers the mandatory imposition of several additional fees, which the court overlooked. Each of these additional fees are to be calculated according to a formula based on other fees imposed by a trial court in a criminal case. The People say we should modify the judgment to reduce the laboratory analysis fee but also impose these additional fees, based on the $50 fee the court should have imposed.
The additional fees for which the People argue are as follows:
▪ state penalty assessment (Pen. Code, § 1464, subd. (a)(1)), $10 for each $10 assessed for a criminal offense, here equal to $50.
▪ state surcharge (Pen. Code, § 1465.7), 20 percent of the underlying fine used to calculate the assessment imposed under Penal Code section 1464, subdivision (a)(1), here equal to $10.
▪ state court construction penalty (Gov. Code, § 70372), $5 for every $10 assessed for a criminal offense, here equal to $25.
▪ additional penalty (Gov. Code, § 76000), $7 for every $10 assessed for a criminal offense, here equal to $35.
▪ DNA fingerprint penalty (Gov. Code, § 76104.6), $1 for every $10 assessed for a criminal offense, here equal to $5.
▪ additional DNA penalty (Gov. Code § 76104.7), $4 for every $10 assessed for a criminal offense, here equal to $20.
These add up to $145, which makes a total of $195 when combined with the correct $50 fee for Health and Safety Code section 11372.5.
In his reply brief, Rodriguez repeats that the fee should be reduced to $50, but does not address the claim that other fees should be added.
In People v. Turner (2002) 96 Cal.App.4th 1409, the Court of Appeal faced a similar situation. The defendant was convicted of possessing methamphetamine for sale (Health & Saf. Code, § 11378), an offense that triggered the same $50 laboratory analysis fee at issue here, which in turn triggered a $50 penalty assessment under Penal Code section 1464 and a $35 penalty assessment under Government Code section 76000. (Turner, supra, 96 Cal.App.4th at pp. 1411, 1413.) The trial court failed to impose any of these. The People did not raise the issue in the trial court or on appeal. The Court of Appeal raised it on its own motion, and, after allowing briefing, imposed the fees, totaling $135. (Id. at pp. 1413-1414.) It stated that because the additional fees were mandatory, the sentence omitting them was unauthorized, and therefore it had authority to correct the error by modifying the judgment on appeal. (Ibid.)
Rodriguez does not argue that the trial court had discretion not to impose the additional fees or that there is any other reason why they should not be found mandatory and therefore imposed via modification of the judgment on appeal. He also does not argue that these additional fees would be duplicative of any already imposed. We will order the assessments corrected accordingly.
DISPOSITION
The judgment is modified in the following particulars: (1) The $70 fee the trial court imposed for AIDS education is stricken. (2) The $135 fee the court imposed pursuant to Health and Safety Code section 11372.5 for laboratory analysis is reduced to $50. (3) The following additional fees are imposed: $50 state penalty assessment (Pen. Code, § 1464, subd. (a)(1)); $10 state surcharge (Pen. Code, § 1465.7); $25 state court construction penalty (Gov. Code, § 70372); $35 additional penalty (Gov. Code, § 76000); $5 DNA fingerprint penalty (Gov. Code, § 76104.6); $20 additional DNA penalty (Gov. Code, § 76104.7).
The trial court is directed to prepare an amended minute order or other suitable documentation and forward it to the appropriate authorities.
The judgment is affirmed as modified.



SMITH, J
WE CONCUR:



GOMES, Acting P.J.



PEÑA, J.