THE PEOPLE v. CONN FLYNN (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Following a jury trial, appellant was convicted of cultivating marijuana (Health & Saf.Code,1 § 11358) and possession of marijuana for sale (§ 11359).   He was granted probation for five years.

Appellant contends several grounds, independently and cumulatively, warrant reversal of the judgment.   He argues the trial court:  erroneously denied his motion to suppress evidence;  abused its discretion by admitting evidence of violent criminal activity at medical marijuana cultivation sites;  and provided the jury with an erroneous definition of the medical marijuana defense.   Appellant also claims the evidence was insufficient to support the verdicts and that the prosecutor committed prejudicial misconduct in closing argument by explaining how the medical marijuana laws would operate if, for example, a mother had been diagnosed with cancer.   None of the claims, whether considered separately or cumulatively, warrant reversal of the judgment.

I. FACTS

A. Prosecution Evidence

On August 12, 2009, pursuant to a search warrant, appellant's residence was searched by narcotics agents.   The 1,200 square foot structure was a two-bedroom, single family dwelling.   Inside the home was a “very sophisticated” marijuana growing operation.

The hallway was filled with tanks of water and associated pumps that pumped water into a nursery containing 54 “baby” marijuana plants.   Large air filters removed some of the marijuana odor before the air was discharged out of the residence.   Each of the two bedrooms was “completely full” of marijuana plants such that an agent “could not walk into the rooms.”   The southwest bedroom had 55 plants in the process of growing “bud” – the most potent and valuable part of the marijuana plant.   The northwest bedroom contained 128 smaller plants.   A bucket filled with approximately 24 ounces of dried marijuana was in a converted bedroom in the living room.

The marijuana plants were under 13 light bulbs, each generating 1,000 watts of light.   The light bulbs emitted so much heat that air hoses were required in the bedrooms in order to prevent the rooms from becoming too hot.

Conservatively speaking, a “typical” marijuana plant was capable of producing one-quarter to three-quarters of a pound of dry marijuana bud.   There are two methods of calculating the potential yield of appellant's operation.   Using a formula relying on the number of plants and the amount of watts generated by the lights, appellant could harvest every 30 days and yield up to 6 pounds of marijuana on each harvest or 72 pounds per year.   However, if one used the southwest bedroom as a “flowering room” and applied a formula referred to as “.1 pounds per square foot,” the product was 21.6 pounds every 30 days or over 250 pounds per year.

Appellant's bank records documented $38,000 in cash deposits between September 2, 2008 and September 14, 2009.   The deposit amounts varied from $500 to $3,200.

Appellant's electric usage was 30 times more than the prior occupant.   He made several cash payments toward his bill including approximately $4,600 in 2009.

Agent Peter Tuttle, of California's Bureau of Narcotic Enforcement, opined the marijuana was possessed for the purpose of sale.   He based his opinion on the amount of marijuana in the residence, the cash deposits and the potential harvests.

Appellant was interviewed by law enforcement.   He indicated he was unemployed and living off of the marijuana cultivation.   He had been growing marijuana at home for approximately one year and knew it was illegal to do so.   He yielded three to four pounds of marijuana per room every three months.   Appellant sold the marijuana directly to a dispensary and was paid approximately “four grand” per pound of marijuana.

B. Defense Evidence

William Britt, the founder and director of the Association of Patient Advocates, was the medical marijuana expert for the defense.   He characterized himself as a “patient advocate” and believed “[i]t's part of patient rights to have access to cannabis․”  Britt examined the marijuana seized from appellant's residence.   He did not believe appellant's marijuana could be harvested every month or that the plants in the southwest bedroom could produce 250 pounds of marijuana in one year.   He opined the projected yield of appellant's operation was three pounds per harvest with three or four harvests per year – a reasonable amount of cultivation for two marijuana collectives.

According to Britt, marijuana cultivation was a “very expensive” operation.²  The cost of producing marijuana – approximately $3,000 per pound – was about the same as the selling price of the product.   Britt concluded appellant's first crop failed, his second crop cost $2,800 per pound to grow, and the third crop cost $3,400 per pound to grow.

Appellant testified on his own behalf.   He had a medical marijuana recommendation because of muscle spasms, back pain and insomnia.

In June 2008, he entered into an agreement with a worker named “Matt” at the On Sunset “collective” to grow marijuana for the 1,200 users who purchased marijuana from the collective.   Appellant purchased close to $5,000 worth of equipment and began his operation in the southwest bedroom in August 2008.   He purchased 50 marijuana “clone” ³ plants and had the intent of having only one grow room.   All of the plants eventually died whereupon appellant purchased another 50 plants.   The second set took three months to harvest and yielded a little over one pound.   It was sold to On Sunset for $2,800.   In late November or early December 2008, appellant purchased a third set of clones which eventually produced approximately three pounds of marijuana that was sold to On Sunset for $3,200 per pound.

In March 2009, appellant purchased a fourth set of 50 clones and, approximately three months later, harvested almost four pounds of marijuana.   He sold three pounds to a different collective – PD Wellness Center – and the remaining fourteen ounces to On Sunset.   PD Wellness Center paid $3,800 per pound and On Sunset paid $3,200 for the balance of the harvest.

In June 2009, appellant converted the northwest bedroom into a second marijuana grow room.   He purchased over $6,000 of additional equipment as well as 150 clones.   Appellant placed 50 clones in the southwest bedroom and 100 clones in the northwest bedroom.   In that same month he purchased an additional 100 clones and placed them in the northwest bedroom.

Appellant estimated he spent between $22,000 and $24,000 setting up his two grow rooms and that he received approximately $24,000 for the marijuana sold to the two collectives.   He worked one hour per day tending to the plants.   However, when the marijuana required harvesting, appellant spent approximately 192 hours per harvest on the plants.   Appellant simply recouped the costs for his equipment and believed he received very little, if any, compensation for his time.⁴  Appellant admitted he harvested more marijuana than was necessary for his personal use and admitted he told Agent Tuttle that he was aware it was illegal to grow marijuana.

All of the loans appellant received from his relatives were cash loans.   Because appellant does not trust the bank, he “tend[ed] to keep [his] money in [his] closet․”

Appellant did not remember the names of any of the medical marijuana patients who were members of either of the two collectives he provided with marijuana.   He had never been to the house of one of these patients or driven any patient to a medical appointment.   Appellant did not provide the patients with any shelter.   The only assistance he provided was as a supplier of marijuana.⁵

II. DISCUSSION

A. The Challenge to the Search Warrant Affidavit

Appellant's residence was searched pursuant to a search warrant.   Agent Peter Tuttle declared in the search warrant affidavit that Special Agent Louis Lopez knocked on appellant's door and, when appellant opened the door, Lopez detected a “strong odor” of marijuana.   In the trial court, appellant characterized this assertion as a “deliberate misrepresentation” and sought to attack the validity of the search warrant under Franks v. Delaware (1978) 438 U.S. 154 (“Franks ”).

In support of his claim that Tuttle's statement was either intentionally or recklessly false, appellant provided the trial court with an offer of proof consisting of his declaration and the declaration of William Britt – the medical marijuana patient advocate.   Appellant declared there was no odor of marijuana at the front door of the house because:  the two grow rooms were at the rear of the house separated from the rest of the house by a Styrofoam barrier and a closed door;  there was a charcoal filter and fan that removed all of the odor;  and the plants were immature.   Britt declared, based on the representations made in appellant's affidavit, there would be “minimal” odor given the maturity of the plants and that the minimal smell would have been removed by the filtration system.   Britt concluded, “there was more likely than not no odor of an active marijuana grow at the front door” of appellant's residence.

Franks provides a vehicle for the defense to demonstrate the need for an evidentiary hearing on the issue of the validity of a search warrant.   (Franks v. Delaware, supra, 438 U.S. at p. 155–156.)   In order to receive such a hearing, the defendant must:  (1) provide an offer of proof demonstrating by a preponderance of the evidence that the affiant's ⁶ misstatements were deliberate or reckless;  and (2) demonstrate the misstatements were material to the finding of probable cause.  (Ibid.) “There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant.   To mandate an evidentiary hearing, the challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross-examine.”  (Id., at p. 171;  see also People v. Panah (2005) 35 Cal.4th 395, 456.)

The premise of appellant's Franks motion was not that the marijuana present in the residence emitted no odor, but that the odor was concealed by physical barriers and a filtration system.   In other words, appellant's position was that Lopez did not have the olfactory capability to smell the marijuana that was present.   But, there was no medical offer of proof concerning the ability of any human, much less Lopez, to smell marijuana.   Indeed, Tuttle's affidavit suggested Lopez's ability to detect the odor was heightened given the fact that Lopez had been a narcotics officer for seven years and was “very familiar with marijuana, and indoor marijuana grows.”

There was no scientific offer of proof that, given the steps appellant took to mask the odor, it was impossible for anyone to smell the marijuana.   Although appellant declared there was no odor of marijuana, such a declaration on its own is insufficient to show there was a misstatement in the affidavit (People v. Box (1993) 14 Cal.App.4th 177, 182) and, more importantly, it does not shed any light on Lopez's individual capability to detect the odor of marijuana.

Appellant's witness – the patient advocate – was unable to provide convincing support to appellant's position.   He simply concluded it was “more likely than not” that there was an absence of odor.   Thus, he left open the possibility that there was, in fact, detectable odor.   Such an opinion is insufficient to overcome the presumption that the affidavit was valid.  (See United States v. Mueller (5th Cir.1990) 902 F.2d 336, 343 [meteorologist's affidavit that a police officer was “unlikely” to detect methamphetamine odor emanating from a house was insufficient to warrant a Franks evidentiary hearing, as “in any sequence of many events, at least some ‘unlikely’ happenings will probably occur”].)

Appellant did not demonstrate it was more likely than not that Lopez misrepresented the fact that he could smell marijuana.   The Franks motion was properly denied.

B. Sufficiency of the Evidence

“ ‘ “To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” ’  [Citations.]”  (People v. Valdez (2004) 32 Cal.4th 73, 104.)   The same standard of review applies even if the prosecution relies on circumstantial evidence.  (People v. Scott (2011) 52 Cal.4th 452, 487, citing People v. Guerra (2006) 37 Cal.4th 1067, 1129, overruled on a different point in People v. Rundle (2008) 43 Cal.4th 76, 151.)

For purposes of assessing whether the evidence supports the jury's rejection of a medical marijuana defense, we consider whether the record demonstrates the defendant put forth sufficient evidence to satisfy his burden to raise “a reasonable doubt as to the facts underlying the medical marijuana defense.”   (People v. Neidinger (2006) 40 Cal.4th 67, 76, citing People v. Mower (2002) 28 Cal.4th 457, 481–482.)   In this case, a rational trier of fact could have concluded appellant failed to meet that burden.

1. Section 11362.765

Section 11362.765, subdivisions (a) through (c) provides, under certain circumstances, immunity to criminal charges such as cultivation of marijuana and possession of marijuana for sale.   In pertinent part, this defense applies to the following:  “(1) A qualified patient or person with an identification card who ․ processes marijuana for his ․ own personal use.  [ ¶] (2) A designated primary caregiver who transports, processes, administers, delivers or gives away marijuana for medical purposes ․ 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 person with an identification card, or his or her designated primary caregiver, in administering medical marijuana to the qualified patient ․“ (§ 11362.765, subd. (b).)

Appellant quotes at length from section 11362.765 but the particular provision upon which appellant relies is not clear.   Appellant maintains he was a “qualified patient ․ [who] provided marijuana to the two collectives he was a member of․”  Since appellant does not argue he is a designated primary caregiver and does not appear to argue he was providing assistance in administering marijuana, it seems appellant is relying on the theory that he was growing the marijuana for his own personal use.

A rational trier of fact could have easily concluded appellant did not meet his burden of raising a reasonable doubt as to the facts underlying such a defense.   The amount of marijuana seized from appellant's residence, the

2. Section 11362.775

In relevant part, the Legislature has provided in section 11362.775, that if qualified patients or persons with valid identification cards, or the caregivers of people who fall into either of these two categories, associate with one another in order to collectively or cooperatively cultivate marijuana for medical purposes, that fact shall not be the sole basis underlying a prosecution for cultivation of marijuana or possession of marijuana for sale.   To the extent appellant argues no rational trier of fact could have convicted him of the offenses because he raised a reasonable doubt as to facts underlying such a defense, that argument is rejected for two reasons.

First, appellant's opening brief does not include a citation to section 11362.775 in support of the argument that there was insufficient evidence to support the verdict.   Rather, after respondent pointed out in its brief that this defense was raised at trial and assessed the evidence relating to that defense, appellant argued in the reply brief that “[t]he facts as developed at trial ․ established appellant was a member of the type of association reasonably contemplated by ․ [section] 11362.775.”   Points made for the first time in the reply brief are ordinarily not considered on appeal.  (See American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453.)

Second, this is not a case where the evidence demonstrates appellant was collectively or cooperatively cultivating marijuana with a patient, person with an identification card or the caregiver of such people.   Appellant sold marijuana to dispensaries.   A rational trier of fact could conclude appellant was operating the marijuana business for financial gain based on bank records reflecting approximately $38,000 in cash deposits over a one-year period, Tuttle's opinion that appellant was a “marijuana wholesaler,” and appellant's admission to Tuttle that he was unemployed and living off of the marijuana cultivation.   Appellant did not meet his burden to raise a reasonable doubt as to the existence of facts underlying a section 11362.775 defense.

C. Evidence Code section 352

In addition to the narcotics offenses, appellant was charged with child abuse (Pen.Code, § 273a, subd. (a)) because his three-year-old daughter was present when his residence was searched.   Appellant argued at trial that the admission of evidence relating to murders and criminal violence at marijuana grow sites should be excluded under Evidence Code section 352.   Appellant stated the evidence was “extremely prejudicial, [there was a ]substantial risk of misleading the jury, and confusing the issues which would substantially outweigh any probative value.”   The trial court overruled the objection “given ․ one of the charges in the case.”   Based on the trial attorneys' arguments it is reasonable to conclude the trial court's reference was to the child abuse charge.   Appellant's claim the trial court erred is meritless.

Evidence Code section 352 prohibits the admission of relevant evidence if its probative value is outweighed by the probability that its admission will create substantial danger of undue prejudice, confusing the issues, or misleading the jury.  “ ‘The prejudice which [Evidence Code section 352] is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.’  [Citations.]  ‘Rather, the statute uses the word in its etymological sense of “prejudging” a person or cause on the basis of extraneous factors.  [Citation.]’  [Citation.]”   (People v. Zapien (1993) 4 Cal.4th 929, 958.)

A trial court's decisions regarding the applicability of Evidence Code sections 1101 and 352 are subject to review for abuse of discretion.   (People v. Davis (2009) 46 Cal.4th 539, 602.)   In this respect, a trial court abuses its discretion only if it exercised its discretion in “ ‘an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.’  [Citation.]”  (People v. Gutierrez (2009) 45 Cal.4th 789, 828.)

The jury was instructed that in order to find appellant guilty of child abuse, the prosecutor was required to prove, in pertinent part, that appellant:  “caused or permitted the child to be placed in a situation where the child's person or health might have been endangered”;  “caused or permitted the child to be endangered under circumstances or conditions likely to produce great bodily harm”;  and was “criminally negligent” when he placed the child in this situation.   By pleading not guilty to the offense, appellant placed all of these elements at issue.  (See People v. Roldan (2005) 35 Cal.4th 646, 705–706, overruled on a different point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)

Evidence demonstrating violent crimes are committed in or near to marijuana grow sites was highly probative to the issue of whether the child was at risk of suffering great bodily harm.   Although Tuttle's testimony that crimes such as robberies, “beatings” and murders had occurred at grow houses was prejudicial to appellant's case, the prejudice naturally flowed from highly relevant evidence.   The trial court did not abuse its discretion.⁷

Even if the trial court erred, any error was harmless.   If the evidence caused appellant undue prejudice it would have most likely affected the child abuse charge.   Indeed, in his argument to the jury, the prosecutor linked this evidence only to the child abuse charge.   The jury voiced its disregard for any prejudice caused by this evidence by acquitting acquitted appellant of child abuse.   Moreover, as explained above, the evidence demonstrating appellant was operating a marijuana cultivation business for profit was so strong that it is not reasonably probable the result of the trial would have been more favorable if the evidence was excluded.⁸  (People v. Watson (1956) 46 Cal.2d 818, 836.)

D. Prosecutorial Misconduct

In arguing his case to the jury, the prosecutor sought to explain how the medical marijuana laws “work.”   In so doing, the prosecutor displayed a photograph of a bald woman and began a hypothetical supposing that either his mother or a juror's mother was diagnosed with cancer and desired marijuana for medicinal purposes.   The prosecutor then explained how this hypothetical person could legitimately access marijuana as a qualified patient or a primary caregiver.   After an objection on the grounds of prosecutorial misconduct, the trial court stated, “I don't think what [the prosecutor] said thus far is problematic, ․ [b]ut stay away from emotions․”  Appellant claims the argument constituted misconduct.   He is incorrect.

“A prosecutor's conduct violates the federal Constitution when it ‘infects the trial with such unfairness as to make the conviction a denial of due process.’  [Citations.]  In other words, the misconduct must be ‘of sufficient significance to result in the denial of the defendant's right to a fair trial.’  [Citation.]  A prosecutor's conduct that does not render a criminal trial fundamentally unfair violates California law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.  [Citation.]”  (People v. Ervine (2009) 47 Cal.4th 745, 805–806.)   A trial court's ruling on prosecutorial misconduct is reviewed for abuse of discretion.  (People v. Alvarez (1996) 14 Cal.4th 155, 213.)

The trial court's ruling was not an abuse of discretion.   Although the prosecutor continued the hypothetical using a mother as a cancer victim, we cannot say that such a reference so infected the trial with unfairness that appellant was denied his right to due process or that the prosecutor engaged in reprehensible or deceptive tactics.   It is an unfortunate reality, and a fact of common knowledge, that cancer patients include mothers.   In addition, the medical marijuana legislation specifically allows cancer patients, with the authorization of a physician, to legitimately use marijuana. (§ 11362.5, subd. (b)(1)(A).)

It is true that there are people who have sympathy for those who are seriously ill.   However, if the defense to marijuana charges is grounded in the medical marijuana laws, a prosecutor's hypothetical used to demonstrate the applicability of the defense would reasonably include a reference to someone who suffers from a disease, such as cancer, that is covered by the medical marijuana provisions.

Even if the prosecutor's argument can be construed as improper, appellate relief is not warranted.   Although the notion that a person's mother may suffer from cancer could trigger sympathy, such emotion would naturally be felt for the potential cancer victim and possibly her family.   Appellant does not explain the nexus between this sympathy and prejudice to his case.   In addition, the trial court instructed the jury that the remarks made by the attorneys in argument are not evidence and there is nothing in the record to suggest the jury refused to follow that instruction.  (See, e.g., People v. Boyette (2002) 29 Cal.4th 381, 436 [alleged prosecutorial misconduct not prejudicial when trial court properly instructed on the law because the jury is presumed to have followed instructions];  People v. Cunningham (2001) 25 Cal.4th 926, 1014;  People v. Medina (1995) 11 Cal.4th 694, 745.)

E. The Jury Instructions

The trial court instructed the jury on the medical marijuana defense, pursuant to a modified version of CALCRIM No. 2370, in the following manner:

“The law of California allows certain persons under certain circumstances to possess or cultivate marijuana.   These people are:  qualified patients and primary caregivers.  [¶] A qualified patient is a person who obtains and uses marijuana for medical purposes upon the recommendation or approval of a physician.  [¶] 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.  [¶] In the case of a qualified patient, the amount of marijuana possessed or cultivated must be reasonably related to his or her current medical needs.  [¶] In the case of a primary caregiver, the amount of marijuana possessed or cultivated must be reasonably related [to] the patients' medical needs.  [¶] Only a primary caregiver may receive compensation for actual expenses, including reasonable compensation and out-of-pocket expenses incurred for services provided to a qualified patient incurred in providing those services.  [¶] Persons who collectively or cooperatively cultivate marijuana may not do so for profit․”

Appellant attacks the propriety of this instruction on many grounds.   His first three contentions are that the trial court improperly neglected to include (1) people in collectives or cooperatives as potential beneficiaries of the defense, (2) possession of marijuana for sale as a crime for which the defense applied;  and (3) people in cooperatives other than those who “till [ ] the soil” as potential beneficiaries of the defense.   However, appellant did not argue to the trial court that the instruction was incomplete on these grounds or request language or instructions that would cover the purported voids.

“A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.”  (People v. Lang (1989) 49 Cal.3d 991, 1024.)   Appellant's failure to argue to the trial court that the instruction was incomplete waives these related claims on appeal.   (People v. Dennis (1998) 17 Cal.4th 468, 514.)

Assuming the claims are not waived, the trial court was not required to instruct the jury in a manner that would remedy the purported defects.   The defense does not simply apply to anyone who is involved with a collective.   Rather, the triggering mechanism for the defense is that the defendant be a qualified patient, or have a valid identification card, or be the caregiver of these people.

Appellant's concern that the jury could have found the defense applicable to the possession of marijuana but yet found him guilty of possession of marijuana for sale is not persuasive.   The instruction properly informed the jury that the defense was applicable to the more general act of possession of marijuana and that it was the prosecutor who had the burden of proving that the marijuana was not possessed for medical purposes.   The more general act of possession of marijuana necessarily included the more specific act of possession of marijuana for sale.

Appellant's third argument is difficult to discern.   It appears to be that the trial court somehow limited the applicability of the defense to those in cooperatives who have nothing to do with the use of medical marijuana.   We do not read the instruction that way.   The trial court was very clear about categories of people to whom the defense may apply—qualified patient or primary caregiver.   No limitation was mentioned with regard to people who may be participating in a collective or cooperative.

Appellant's remaining three claims regarding instructional error do not warrant appellate relief because they are devoid of necessary analysis or citation to authority.   Each claim follows the same pattern.   It contains a topic heading defining the purported error, summarizes trial counsel's comments to the trial court, and indicates the trial court incorrectly rejected the argument of counsel.⁹  A summary of the record and a “bare bones” claim of error are insufficient to warrant appellate relief.   The absence of independent legal analysis and citation to authority is fatal to the claims on appeal.   (Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215 [“Contentions are waived when a party fails to support them with reasoned argument and citations to authority”].)

F. The Jury Questions

The jury asked two questions during deliberations.   First, “Is a collective a primary care giver [sic ]?”   Thereafter, the jury asked, “Is the collective a qualified patient(s)?”

In response to the first question the trial court indicated, “No. A primary care giver [sic ] is a person who consistently provides caregiving to a qualified patient independent of any assistance in taking medical marijuana, and the relationship must have existed before the time the primary caregiver assumed responsibility for assisting the qualified patient with medical marijuana.”

With the parties in agreement, the trial court responded to the second question by referring to the previously given instructions.   The court stated, “The definition of [a] ‘qualified patient’ can be found on page 8 of the jury instructions.”   On page eight, the instruction read, “A qualified patient is a person who obtains and uses marijuana for medical purposes upon recommendation or approval of a physician.”

Without citing legal authority, appellant maintains the trial court's responses were “misleading, legally incorrect, and left the jurors to believe that collectives and cooperatives played no role in the medical marijuana defense․”  He points out the trial court “never instructed on the definition of a collective or cooperative․”

Appellant's argument lacks merit for a number of reasons.   Initially, the argument suffers from procedural defects.   It fails because it lacks citation to any supporting legal authority.  (Moulton Niguel Water Dist. v. Colombo, supra, 111 Cal.App.4th at p. 1215.)   In addition, any error concerning the answer to the jury's second question is waived because appellant specifically asked the trial court “to refer [the] jurors back to the instruction.”   (People v. Castaneda (2011) 51 Cal.4th 1292, 1352 [“Defendant [waives claim that trial court erred in responding to a jury question] by agreeing with the trial court concerning the appropriate response to the jurys question].)

Apart from the procedural problems with appellant's arguments, the trial court properly answered the questions.  “[A] defendant asserting primary caregiver status must prove at a minimum that he or she (1) consistently provided 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.”  (People v. Mentch (2008) 45 Cal.4th 274, 283 (“Mentch ”).)   The trial court's response to the first question was consistent with Mentch.

Similarly, “Under section 11362.5[, subdivision] (d), qualified patients and primary caregivers ‘who obtain and use marijuana for medical purposes upon the recommendation of a physician’ are exempted not only from ‘criminal ․ sanction’ for possession and cultivation of marijuana, but even from ‘criminal prosecution’ (§ 11362.5, subd. (b)(1)(B))․”  (People v. Mower, supra, 28 Cal.4th at p. 482.)   The trial court's definition of a “qualified patient” mirrored the medical marijuana legislation and Supreme Court authority.

G. Cumulative Error

Appellant contends the cumulative effect of the trial court's error requires reversal of the judgment of conviction.   Appellant has not demonstrated the trial court committed any error.   Whether considered independently or together, appellant's claims do not warrant relief.  (See People v. Howard (2010) 51 Cal.4th 15, 45;  People v. Albilez (2007) 41 Cal.4th 472, 523.)

III. DISPOSITION

The Judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KUMAR, J.^*

We concur:

TURNER, P. J.

KRIEGLER, J.

FOOTNOTES

FN1. All further statutory references are to the Health and Safety Code unless otherwise indicated..  FN1. All further statutory references are to the Health and Safety Code unless otherwise indicated.

FN2. Appellant received approximately $43,000 in loans from various relatives in 2008 and 2009.   Of those loans, at least $38,000 was not paid back..  FN2. Appellant received approximately $43,000 in loans from various relatives in 2008 and 2009.   Of those loans, at least $38,000 was not paid back.

FN3. Appellant paid approximately $8.00 per marijuana clone plant purchased for his cultivation.   A total of 450 clones were purchased in the course of the marijuana production..  FN3. Appellant paid approximately $8.00 per marijuana clone plant purchased for his cultivation.   A total of 450 clones were purchased in the course of the marijuana production.

FN4. Britt opined between $10 and $25 per hour was reasonable compensation for someone growing for a collective..  FN4. Britt opined between $10 and $25 per hour was reasonable compensation for someone growing for a collective.

FN5. The brief rebuttal evidence is not relevant to any issue on appeal..  FN5. The brief rebuttal evidence is not relevant to any issue on appeal.

FN6. The defense may base its Franks challenge not only on the affiant's statements but also on the statements of other officers upon which the affiant relies.  (Franks. v. Delaware, supra, 438 U.S. at p. 164, fn. 6.).  FN6. The defense may base its Franks challenge not only on the affiant's statements but also on the statements of other officers upon which the affiant relies.  (Franks. v. Delaware, supra, 438 U.S. at p. 164, fn. 6.)

FN7. Appellant's passing reference to the federal Constitution is, at best, a “gloss on the objection raised at trial․”  (People v. Riggs (2008) 44 Cal.4th 248, 292.)   We take the same approach as the Supreme Court and reject the argument “because the trial court did not abuse its discretion in admitting the evidence.  [Citation.]”  (Ibid.).  FN7. Appellant's passing reference to the federal Constitution is, at best, a “gloss on the objection raised at trial․”  (People v. Riggs (2008) 44 Cal.4th 248, 292.)   We take the same approach as the Supreme Court and reject the argument “because the trial court did not abuse its discretion in admitting the evidence.  [Citation.]”  (Ibid.)

FN8. For the same reasons, any federal Constitutional error is harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18, 24..  FN8. For the same reasons, any federal Constitutional error is harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18, 24.

FN9. After a summary of trial counsel's comments to the trial court, the claims offer the following concluding sentences:  (1) “The trial court said [it] understood [trial counsel's argument], but disagreed”;  (2) “The trial court disagreed [with trial counsel's argument] and ruled adding that language to the instruction would be inappropriate”;  and (3) “Both requests by [trial counsel] conformed with the statutory parameters of the medical marijuana defense and the trial court erred in not instructing the jury accordingly.”.  FN9. After a summary of trial counsel's comments to the trial court, the claims offer the following concluding sentences:  (1) “The trial court said [it] understood [trial counsel's argument], but disagreed”;  (2) “The trial court disagreed [with trial counsel's argument] and ruled adding that language to the instruction would be inappropriate”;  and (3) “Both requests by [trial counsel] conformed with the statutory parameters of the medical marijuana defense and the trial court erred in not instructing the jury accordingly.”

FOOTNOTE.  FN*.  Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.