Filed 10/4/17 P. v. McKinney CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush and Raymonda B. Marquez, Judges.

Thomas W. Casa, 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, Catherine Chatman and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Defendant Micah Andrew McKinney was charged with unlawful possession of a firearm (Pen. Code,[1] § 29800, subd. (a)(1); count 1) and ammunition (§ 30305, subd. (a)(1); count 2), possession of marijuana for sale (Health & Saf. Code, § 11359; count 3) and simple possession of marijuana (Health & Saf. Code, § 11357, subd. (c); count 4). A jury convicted defendant of counts 3 and 4. The trial court sentenced defendant to three years of formal probation for count 3 upon the condition he serve one year in county jail, and the court dismissed count 4 in the interests of justice.

On appeal, defendant challenges the trial court’s ruling denying his motion to suppress. Defendant contends (1) there was not probable cause to support a search of his home and cellular phone for evidence of firearm and ammunition possession, (2) there was not probable cause to support a search of his home and cellular phone for evidence of drug trafficking, (3) the good faith exception to the warrant requirement and the doctrine of inevitable discovery do not apply, and (4) the trial court erred by failing to instruct the jury sua sponte on the collective cultivation defense (CALCRIM No. 3413). We affirm.

FACTUAL AND PROCEDURAL HISTORY

On January 25, 2014, at about 1:50 a.m., Tehachapi police officer Wayne Horning was on patrol in an industrial part of Tehachapi. He saw defendant standing next to the driver’s side door of a parked car. According to Horning, it was uncommon to see people in that area at that time of morning. Finding defendant’s presence suspicious, he decided to pull in behind the parked car and contact defendant. As Officer Horning made a U-turn, he briefly lost sight of defendant.

Officer Horning stopped his patrol vehicle and asked defendant what he was doing. Defendant explained he had locked his keys in his car. During the contact, police dispatch conducted a records check for defendant and his vehicle. The vehicle had an expired registration. Defendant agreed to have his vehicle towed.

The tow truck driver arrived and opened the vehicle. Horning gave defendant the keys inside and informed him he was free to leave. Defendant walked away.

Officer Michael Christin arrived to provide backup shortly before 2:00 a.m. Christin was observing the scene after defendant left when he noticed a small, loaded .25-caliber Beretta handgun in the gutter where defendant’s car had been parked. The gun appeared to be free of any dirt, moss, or water, and it did not look like it had been in the gutter very long.

On February 10, 2014, Officer Kevin Paille assisted in a search of defendant’s residence pursuant to a search warrant. During the search, officers found a cellular phone, approximately two pounds of cut and dried marijuana, and two digital scales. Based on his narcotics experience, Officer Paille opined defendant intended to sell the marijuana. He based his opinion on the quantity possessed, the digital scales, and various text messages found in defendant’s phone. At the time of the search, defendant was in possession of a medical marijuana card and an expired marijuana recommendation.

Detective Jason Dunham examined defendant’s cellular phone and found a text message wherein “Sara Allen” asked defendant whether “he had $10 worth of green.” Defendant replied affirmatively and stated “he would come to her.” Detective Dunham opined defendant possessed the marijuana for sale.

In another text message, defendant wrote, “I keep my banger ready, bitch. He will die.” Defendant also stated in a text: “No, I locked my keys in the car, so I couldn’t get into house. When the cops came, I was getting in my car and the yaya was on the ground. When I went back, the yaya wasn’t.” Detective Dunham opined “banger” and “yaya” were slang terms for a firearm.

Detective Dunham interviewed defendant at defendant’s residence. Defendant denied having anything to do with the firearm found under his car. He told Detective Dunham if there were fingerprints on the gun, his would not be the only ones. Defendant would neither confirm nor deny whether he touched the weapon. He further denied selling marijuana.

On February 11, 2014, defendant made a telephone call from jail to an unknown female. A recording of the call was played for the jury. Defendant stated, “[T]hat banger they found outside of the car they try to say it had my prints on it.” He clarified he was referring to a pistol. In the call, defendant stated he believed the search of his place stemmed from the police finding the gun. Defendant remarked there was a time when Sara Allen was supposed to pick up some weed.

The parties stipulated defendant had two prior felony convictions.

Defense’s Case

Adam Rickels, an evidence technician for the Kern County Sheriff’s Office, processed the Beretta firearm for fingerprints. He was unable to find any usable fingerprints on the firearm.

Defendant testified his marijuana recommendation was based on prior injuries he had sustained. His most recent recommendation was valid from March 25, 2013, through March 24, 2014. Defendant opined officers may have examined an expired recommendation on the night his residence was searched.

Defendant testified he provided his excess marijuana to a collective called Chronically Inclined. He denied selling marijuana. He claimed he used the scales to measure the amount of marijuana he would donate to the collective. Defendant stated the gun was not his. He claimed Detective Dunham told him he would not let him out of the interview room unless he admitted to touching the firearm. Defendant also claimed Dunham grabbed him by the shoulders.

On the night defendant’s vehicle was towed, he sent a text to his live-in girlfriend stating, “Look, I might be going to jail.” Defendant testified he had dropped some cocaine that night and he was worried the police had found it. He claimed “yaya” was a reference to cocaine. Defendant agreed that “banger” was a reference to a gun.

Rebuttal

Detective Dunham denied touching defendant or grabbing him during questioning. He also stated defendant never mentioned working with a marijuana collective or anything about cocaine. Dunham maintained his opinion defendant possessed the marijuana for sale.

Discussion

I. There Was Probable Cause to Support the Search of Defendant’s Home and Cellular Phone for Evidence of Firearm and Ammunition Possession

Defendant contends insufficient evidence connected him to the firearm found by the officers, and there was not probable cause to support the search of his home and cellular phone for evidence of firearm and ammunition possession. We disagree. Detective Dunham’s affidavit provided sufficient facts to connect defendant with the loaded firearm found under his car and to support a search of defendant’s home and cellular phone.

A. Suppression Motion Facts

In a pretrial motion, defendant argued evidence stemming from the search of his residence should be suppressed and the search warrant should be quashed because the warrant was not supported by probable cause.

The affidavit of probable cause executed by Detective Dunham described defendant’s contact with Officer Horning and the expired registration of defendant’s vehicle. Defendant explained he had walked from his residence to get his vehicle, which a friend had borrowed, but his keys were locked inside. Officers found defendant’s presence in a remote industrial area at 1:50 a.m. suspicious. Upon the arrival of a tow truck, defendant retrieved the keys from his vehicle and walked home. As the vehicle was being loaded onto the tow bed, a gun was found in the gutter where defendant’s vehicle had been parked. The gun was loaded and appeared operational. Police discovered the gun was registered to a deceased individual.

Detective Denham was familiar with defendant because defendant had been previously arrested for cultivating over 40 marijuana plants. The incident resulted in a conviction in 2007. Following a record check, Detective Denham also discovered defendant had two prior felony convictions from May 2000.

Detective Dunham opined defendant possessed and then discarded the loaded firearm. He requested the seizure of evidence at defendant’s home to investigate the crime of possession of a firearm by a felon. Dunham explained the bullets in the firearm were unique, and similar bullets might be discovered at defendant’s residence, proving he had unlawfully possessed the firearm. Based on Dunham’s training and experience, gun paraphernalia is often found in a suspect’s home.

Dunham also sought the seizure of evidence in defendant’s cellular phone because criminals often use their phones to discuss or photograph their illegal weapons. Because convicted felons cannot lawfully purchase a firearm, it is common for them to do so through illicit channels. Evidence of such a purchase might be discovered in a suspect’s text messages. Dunham explained suspects also often take pictures of firearms or ammunition they have and store these pictures in their cellular phone.

Based on the same facts and circumstances described, Detective Dunham also sought the seizure of evidence related to the trafficking of controlled substances.

The trial court conducted a hearing upon defendant’s motion. Defendant argued insufficient facts tied him to the gun found under his car.

On August 26, 2014, the court denied the motion to suppress and declined to quash the search warrant.

B. Legal Principles

“In determining whether an affidavit is supported by probable cause, the magistrate must make a ‘practical, common-sense decision whether, given all the circumstances set forth in the affidavit … there is a fair probability that contraband or evidence of a crime will be found in a particular place.’” (Fenwick & West v. Superior Court (1996) 43 Cal.App.4th 1272, 1278.) Probable cause may be established through evidence that would not be admissible at trial, including an officer’s information and belief. (People v. Varghese (2008) 162 Cal.App.4th 1084, 1103.) A suspect’s arrest record is also relevant and part of the totality of the circumstances. (People v. Aho (1985) 166 Cal.App.3d 984, 992.)

Magistrates may also rely upon the expertise of officers about where evidence of a crime would likely be found. (People v. Lazarus (2015) 238 Cal.App.4th 734, 764; People v. Pressey (2002) 102 Cal.App.4th 1178, 1183.) A suspect’s residence is a logical place to look for specific incriminating items, depending upon the nature of the crime and items sought. (People v. Pressey, supra, at p. 1183; People v. Miller (1978) 85 Cal.App.3d 194, 204; see People v. Superior Court (Brown) (1975) 49 Cal.App.3d 160, 167–168.) Guns, for example, are reasonably likely to be kept in a suspect’s home. (People v. Lee (2015) 242 Cal.App.4th 161, 173 [“it is no great leap to infer that the most likely place to keep a firearm is in one’s home”].)

A reviewing court should pay great deference to a magistrate’s determination of probable cause. (Illinois v. Gates (1983) 462 U.S. 213, 236, 238–239.) “We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.” (People v. Glaser (1995) 11 Cal.4th 354, 362.)

C. Legal Analysis

1. Evidence Connecting Defendant to the Firearm

Defendant initially challenges the sufficiency of the evidence linking him to the firearm under his vehicle. We find his contention unpersuasive.

The crimes of felon in possession of a firearm and felon in possession of ammunition (§§ 29800, subd. (a)(1), 30305, subd. (a)(1)) require proof the suspect has previously suffered a felony conviction, and the suspect has actually or constructively possessed a gun or ammunition with knowledge of the item’s existence. (People v. Jeffers (1996) 41 Cal.App.4th 917, 922.)

Here, Detective Dunham’s affidavit made clear that a gun was found in the gutter where defendant’s vehicle had been parked. A record check showed the gun was registered to a deceased individual. Dunham was also personally familiar with defendant and knew he had previously been arrested for cultivating more than 40 marijuana plants in 2007, and he discovered defendant was a convicted felon as of May 2000. Based on defendant’s status as a felon and the location of the gun, Dunham determined defendant had unlawfully been in possession of a loaded firearm.

Contrary to defendant’s assertions, the affidavit provided ample support to conclude defendant possessed the firearm found beneath his vehicle. The fact the firearm was found in the same location his vehicle had been parked was sufficient to show the firearm likely belonged to defendant and he had likely hidden the gun under his vehicle as Officer Horning made a U-turn to contact him.

Defendant contends the Attorney General failed to direct this court to authority to support his conclusion that being in the vicinity where the firearm was discovered amply connected defendant to the firearm. Preliminary, we observe the burden to establish the invalidity of a search warrant is on defendant, not the Attorney General. (Fenwick & West v. Superior Court, supra, 43 Cal.App.4th at p. 1278.) Insofar as defendant suggests there are insufficient facts linking him to the firearm, we disagree. The magistrate could have logically concluded the firearm belonged to defendant based on a commonsense consideration of the facts. The firearm was in usable condition, it was discovered in a remote location, it appeared to be free of water and debris, and it was found under the exact location where defendant’s vehicle had been parked. This was sufficient to suggest defendant had knowledge of the firearm and it had been in his possession.

Defendant further contends his two felony convictions had nothing to do with the possession, use, or concealment of a firearm. He directs us to case authority holding that evidence of a prior related conviction “has at best only a slight tendency to establish that [a] defendant was presently engaged in illegal conduct.” (People v. Gallegos (1964) 62 Cal.2d 176, 179.)

His argument misses the mark. Section 29800, subdivision (a)(1) prohibits any person convicted of a felony from possession of a firearm without regard to whether the felony was based on a conviction for a firearm-related offense. The fact that a loaded firearm was found underneath defendant’s vehicle suggested he was in possession of a firearm and ammunition; defendant’s prior felony convictions showed he was unable to lawfully possess a firearm or ammunition.

2. Probable Cause to Issue the Search Warrant to Seize Evidence of Firearm and Ammunition Possession

Defendant asserts Detective Dunham’s affidavit was insufficient to establish probable cause to search defendant’s home and cellular phone for evidence of possession of firearms and ammunition. We conclude the circumstances set forth in the affidavit demonstrate a fair probability evidence of a crime would be found in defendant’s home and cellular phone.

In his affidavit, Dunham explained the bullets inside the firearm found under defendant’s car were unique. He surmised similar unique bullets may be found in defendant’s home. It is logical to infer defendant may have stored additional bullets of the same variety at his residence, which would tend to show he possessed the loaded firearm found under his vehicle.

Detective Denham also stated, based on his training and experience, it is common for subjects who possess firearms to also possess ammunition, casings, firearm pieces, gun-cleaning kits, holsters, ammunition belts, clips/magazines/loading devices, targets, and expended bullets. He noted such items are commonly stored within locked safes or locked compartments kept inside of the suspect’s home.

Based on several investigations he had previously conducted, Detective Dunham explained suspects who have felony convictions often rely on cellular phones to purchase firearms and ammunition from illicit sources. As such, a suspect’s text messages and stored photographs may contain evidence of a firearm or ammunition purchase, or they may depict possession of such contraband.

We conclude Detective Dunham’s affidavit provided ample facts to show there was a fair probability evidence of firearms or ammunition possession might be found in defendant’s home or cellular phone. The magistrate was permitted to rely on Detective Dunham’s training and experience as well as commonsense principles in determining evidence of firearm and ammunition possession might be seized in defendant’s home. (People v. Varghese, supra, 162 Cal.App.4th at p. 1103.)

II. Probable Cause to Support the Search for Evidence of Drug Trafficking

Next, defendant appears to challenge the scope of the search warrant. He contends Detective Dunham’s affidavit was insufficient to establish probable cause to search his home and cellular phone for evidence of drug trafficking. The Attorney General contends defendant forfeited his claim by failing to raise this issue below and by offering inadequate argument and authority to support his claim on appeal.

Although there appears to be insufficient facts to establish probable cause to support the search of defendant’s home and cellular phone for evidence of drug trafficking, the record shows defendant failed to adequately challenge the scope of the search warrant in the trial court below. Nonetheless, assuming defendant’s claim was preserved for appellate review, reversal of defendant’s convictions and suppression of the drug trafficking evidence is not warranted. The drug trafficking evidence was admissible under the inevitable discovery doctrine.

Background

In his motion to suppress, defendant argued the search of his cellular telephone for evidence of unlawful firearm possession was not supported by probable cause. Defendant further claimed “the officer was attempting to use the warrant as a fishing expedition for evidence of narcotics sales.” The motion did not otherwise argue that a search for evidence of drug trafficking was unsupported by probable cause. At the suppression hearing, defendant asserted there were insufficient facts linking him to the gun found underneath his vehicle to support a search of his home. However, he did not argue a search for evidence of drug trafficking was unsupported by probable cause.

1. Evidence of Drug Trafficking

Defendant contends the only evidence linking him to the crime of drug trafficking was the fact he had been arrested for cultivating over 40 marijuana plants in 2007. He asserts this information was stale.

“Information that is remote in time may be deemed stale and thus unworthy of consideration in determining whether an affidavit for a search warrant is supported by probable cause.” (People v. Hulland (2003) 110 Cal.App.4th 1646, 1652.) If circumstances would justify a person of ordinary prudence to conclude that an activity had continued to the present time, then the passage of time will not render the information stale. (People v. Mikesell (1996) 46 Cal.App.4th 1711, 1718.)

Nothing in Dunham’s search warrant suggested defendant was currently trafficking drugs or that evidence of drug trafficking remained in his home or in his cellular phone. Here, the search warrant appears to be based on defendant’s prior conviction for cultivating marijuana. This conviction was over seven years old. There was no new information in the affidavit explaining how the totality of the circumstances tended to show defendant was still trafficking drugs. (See People v. Mikesell, supra, 46 Cal.App.4th at pp. 1718–1719 [information from confidential informant, several years old, was not valueless when, combined with more recent information, it tended to show the defendants’ continuing participation in drug trafficking].) Without additional facts suggesting defendant may still be trafficking drugs, it appears the search warrant was insufficient to show a substantial probability that evidence of drug trafficking would be found in defendant’s home or cellular phone. (People v. Garcia (2003) 111 Cal.App.4th 715, 721 [“‘an affidavit for a search warrant must contain facts demonstrating a substantial probability that [contraband or] evidence of a crime will be located in a particular place’”].)

2. Inevitably Discovery

The Attorney General asserts the drug trafficking evidence was admissible under the good faith exception. He further contends the drug trafficking evidence, found in plain view, would have been inevitably discovered during the lawful search of defendant’s home and cellular phone for evidence of firearm and ammunition possession. We agree the drug trafficking evidence would have been inevitably discovered. As a result, we need not address whether officers relied on the search warrant in good faith.

Under the inevitable discovery doctrine, illegally seized evidence may be used where it would have been discovered by the police through lawful means. Under the doctrine, the People “must show a ‘reasonable probability that [the challenged evidence] would have been procured in any event by lawful means.’” (People v. Superior Court (Walker) (2006) 143 Cal.App.4th 1183, 1215.) As our Supreme Court has explained, “the doctrine ‘is in reality an extrapolation from the independent source doctrine: Since the tainted evidence would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered.’ [Citation.] The purpose of the inevitable discovery rule is to prevent the setting aside of convictions that would have been obtained without police misconduct. [Citation.] The burden of establishing that illegally seized evidence is admissible under the rule rests upon the government.” (People v. Robles (2000) 23 Cal.4th 789, 800–801, italics omitted.)

Here, the evidence of drug trafficking included: the text message from Sara Allen asking defendant if he had $10 worth of “green,” approximately two pounds of marijuana found in defendant’s bedroom, and two digital scales. Because police had probable cause to search defendant’s home and cellular phone for evidence of firearm and ammunition possession, we conclude there is a reasonable probability police would have uncovered this evidence by lawful means. “‘When officers, in the course of a bona fide effort to execute a valid search warrant, discover articles which, although not included in the warrant, are reasonably identifiable as contraband, they may seize them whether they are initially in plain sight or come into plain sight subsequently, as the result of the officers’ efforts.’” (People v. Diaz (1992) 3 Cal.4th 495, 563.)

Defendant makes no argument the drug trafficking evidence was not reasonably identifiable as contraband or would not have been discovered during the course of the search for evidence of firearms or ammunition possession. We conclude that even if defendant had timely challenged the scope of the search warrant by alleging there was insufficient probable cause to support a search for evidence of drug trafficking, this evidence was not subject to suppression.

III. The Trial Court Did Not Err in Failing to Instruct the Jury Sua Sponte on the Collective Cultivation Defense (CALCRIM No. 3413)

Finally, defendant contends the trial court failed to instruct the jury sua sponte on the collective cultivation defense. At trial, defendant testified he did not sell marijuana—he donated it to a collective called Chronically Inclined. According to defendant, the trial court erred in failing to the instruct the jury sua sponte on the collective cultivation defense. We find no error.

A. Background

The parties conducted an Evidence Code section 402 hearing to determine the foundation for the presentation of a medical marijuana defense. Defendant testified he had a medical marijuana recommendation for personal use. He also claimed he was a vendor to a collective. Defendant explained he donated marijuana to a clinic called Chronically Inclined. The court ruled defendant would be permitted to raise a personal use medical marijuana defense.

Before the jury, defendant testified he had a personal medical marijuana recommendation, he grew marijuana, and he provided his excess marijuana to a collective. Defendant acknowledged having a personal medical marijuana recommendation did not give him license to sell marijuana. He denied selling marijuana and sending a text to Sara Allen about selling her marijuana.

After the evidentiary presentation, the parties discussed jury instructions. The prosecutor argued CALCRIM No. 2375 adequately conveyed the compassionate use defense. Defendant requested pinpoint instructions as to the Compassionate Use Act. The trial court declined to give defendant’s special instructions, reasoning the Compassionate Use Act was adequately addressed by CALCRIM No. 2375. Defendant raised no objection to CALCRIM No. 2375, which instructed the jury that if the defendant had a marijuana use recommendation, the marijuana possessed “must be reasonably related to [his] current medical needs.” Defendant also failed to proffer any instructions addressing his alleged act of vending excess marijuana to a collective, nor did he request CALCRIM No. 3413 (Collective or Cooperative Cultivation).

The prosecutor argued the elements for possession of marijuana for sale required him to prove beyond a reasonable doubt defendant intended to sell marijuana. He asserted Sara Allen’s text message asking defendant for $10 worth of “green” proved defendant’s intent to sell marijuana. The prosecutor explained that even with a medical marijuana card it was illegal to sell marijuana.

In his defense, defendant argued he lacked the intent to sell marijuana. He explained donating marijuana to a collective was not a sale. Defense counsel agreed that selling marijuana to Sara Allen would be illegal, but he argued there was insufficient evidence defendant intended to sell marijuana.

B. The Medical Marijuana Program Act

The Medical Marijuana Program Act (MMP; Health & Saf. Code, 11362.7 et seq.) recognizes a qualified right to collectively cultivate medical marijuana:

“[Q]ualified 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 cannabis for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under [Health and Safety Code] Section … 11359 ….” (Health & Saf. Code, § 11362.775, subd. (a).)

The collective cultivation defense requires a defendant show that members of the collective or cooperative (1) are qualified patients who have been prescribed marijuana for medicinal purposes, (2) collectively associate to cultivate marijuana, and (3) are not engaged in a profit-making enterprise. (People v. Jackson (2012) 210 Cal.App.4th 525, 529.) Not all members must participate in the cultivation process, they may instead provide financial support by buying marijuana from the organization. (Id. at pp. 529–530.) “A defendant invoking the MMP as a defense bears the burden of producing evidence in support of that defense.” (People v. Solis (2013) 217 Cal.App.4th 51, 57.)

C. Legal Analysis

Defendant contends the trial court erred in failing to instruct the jury sua sponte on the collective cultivation defense. A trial court must instruct, sua sponte, on a particular defense only if the defendant appears to be relying on the defense, or there is substantial evidence supportive of the defense and the defense is not inconsistent with the defendant’s theory of the case. (People v. Martinez (2010) 47 Cal.4th 911, 953.) “‘Substantial evidence is “evidence sufficient ‘to deserve consideration by the jury,’ not ‘whenever any evidence is presented, no matter how weak.’”’” (People v. Wilson (2005) 36 Cal.4th 309, 331.)

Here, there is insufficient evidence to raise a reasonable doubt that defendant was cultivating marijuana for a collective. Defendant testified he had donated marijuana to Chronically Inclined for the past four or five years. He did not otherwise offer any evidence to support his claim, nor did he offer any details about the collective. When the jury is instructed on the collective cultivation defense, it “must determine whether the collective [the defendant] participates in is a profit-making enterprise.” (People v. Jackson, supra, 210 Cal.App.4th at p. 530.) In deciding whether the collective is a profit-making enterprise, the jury “should consider, in addition to other evidence of profit or loss, the size of the collective’s membership, the volume of purchases from the collective and the members’ participation in the operation and governance of the collective.” (Ibid.)

Although a defendant must only raise a reasonable doubt as to whether the elements of an MMP defense have been proven, defendant here failed to meet this minimal burden. (People v. Jackson, supra, 210 Cal.App.4th at p. 533.) He offered no evidence whatsoever about the Chronically Inclined collective other than his testimony the collective is located in Mohave, it tests marijuana, and it gives marijuana to patients. From the record, there is no indication of whether Chronically Inclined is a for-profit enterprise, or a nonprofit enterprise operated for the benefit of its members. (See Qualified Patients Assn. v. City of Anaheim (2010) 187 Cal.App.4th 734, 747 [collectives and cooperatives under Health & Saf. Code, § 11362.775 must be nonprofit]; Jackson, supra, at p. 538 [Legislature intended MMP to protect nonprofit enterprises]; People v. Hochanadel (2009) 176 Cal.App.4th 997, 1010 [cooperatives and collectives must be nonprofit operations].) Thus, there was insufficient evidence to warrant sua sponte instruction on the collective cultivation defense.

Defendant also makes two unrelated arguments claiming he was prejudiced by various comments made by the prosecutor and Detective Dunham. Neither of his arguments are persuasive.

First, defendant contends Detective Dunham and the prosecutor made numerous incorrect statements, claiming a person under the Compassionate Use Act cannot sell marijuana. Dunham stated an individual with a medical marijuana recommendation cannot earn a profit for selling marijuana. However, Dunham explained he or she may receive monetary compensation in exchange for growing marijuana donated to a collective to reimburse the grower for expenses incurred in the cultivation of the drug. This was not an erroneous statement of the law.

Second, defendant complains the prosecutor and Detective Dunham incorrectly stated it was illegal under the Compassionate Use Act for a person to possess more than eight ounces of marijuana. Not only does he fail to direct us to portions of the record showing Detective Dunham and the prosecutor made such statements, he does not explain how he was prejudiced by these comments. Defendant himself testified one person can possess eight ounces of marijuana in Kern County. We reject defendant’s claims he was prejudiced by comments made by Detective Dunham and the prosecutor.

DISPOSItion

The judgment is affirmed.

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PEÑA, J.

WE CONCUR:

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HILL, P.J.

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BLACK,* J.