People v. Masotti

Opinion

ROBIE, J.

— Defendant Richard Masotti was charged with possession of a controlled substance without a prescription, cultivation of marijuana, and two counts of sale of marijuana. After a jury found him guilty of cultivation of marijuana and two lesser included counts of furnishing marijuana, the trial court ordered a new trial on the cultivation charge based on instructional error and insufficient evidence.

[506]

On appeal from the order granting a new trial, the People contend (1) the trial court did not have jurisdiction to grant the motion on the basis of instructional error; (2) there was no instructional error in the jury instructions regarding medicinal marijuana; and (3) there was sufficient evidence to support a conviction. We agree that the trial court did not have jurisdiction to grant a new trial for instructional error. The court also erred in finding insufficient evidence for the conviction. Therefore, we reverse the order granting a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant is a Vietnam War veteran who suffers from pain in his knees and hip. He has used marijuana for pain management. In April 2006, he obtained a medical marijuana recommendation card. After receiving the card, he began growing marijuana at home.

In October 2006, California Highway Patrol Officer William Brian Cox arranged for an informant, Perry E., to make a “controlled buy” from defendant. Perry E. went to defendant’s home and asked for marijuana, telling defendant it was his birthday. Defendant gave Perry E. the marijuana, but refused payment. Perry E. placed $10 on the table before he left.

In November 2006, Officer Cox had Perry E. perform another “controlled buy” from defendant. Defendant again gave Perry E. marijuana. Perry E. gave defendant $5.

On November 17, 2006, officers searched defendant’s residence. During the search, the officers found marijuana plants, drying marijuana, and dried marijuana. The officers also found $189 in cash. Officer Cox testified the amount of marijuana recovered was within state guidelines for someone with a medical marijuana card.