People v. Sandercock CA2/6

Filed 3/17/14 P. v. Sandercock CA2/6 Opinion following rehearing NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B238858 (Super. Ct. No. F455771) Plaintiff and Appellant, (San Luis Obispo County)

v. OPINION ON REHEARING

THOMAS ANTHONY SANDERCOCK, JR., et al.,

Defendants and Respondents.

Anthony Sandercock, Jr., Christopher Austin and Amy Austin (collectively, "Defendants") were charged with selling marijuana and possession of marijuana for sale. (Health & Saf. Code, §§ 11359 & 11360.)1 In a pretrial motion, the trial court approved a defense instruction under the Medical Marijuana Program Act (MMPA). (§§ 11362.7 et seq.) The People declared they could not proceed under the instruction. The trial court entered judgment of dismissal and the People appeal. We issued a published opinion reversing the trial court because the defense instruction standing alone appeared to allow what the MMPA prohibited, the retail sale of marijuana at a profit. But the court intended to give other instructions related to the MMPA defense that the parties neglected to mention in their initial briefing. That prompted us to grant rehearing.

1 All statutory references are to the Health and Safety Code unless stated otherwise.

We have reviewed the entire MMPA instruction and conclude it does not adequately cure the flaw in the challenged instruction. We reverse and remand. FACTS2 In the fall of 2010, a San Luis Obispo detective purchased marijuana from people who purported to be representing three different medical marijuana dispensaries called Hopeful Remedies, Open Access Foundation, and West Coast Caregiving Consulting. In each instance, the detective called the dispensary, and someone showed up at her doorstep. The delivery person verified that the detective had a physician's medical marijuana recommendation or asked her to sign a document indicating the delivery person was her caregiver. The delivery person then sold her a quantity of marijuana. For their role in owning or operating one of these dispensaries, Defendants were charged with selling marijuana and possessing marijuana for sale. JURY INSTRUCTION Prior to trial, the trial court ruled that it would give a jury instruction as follows: "Providing money in exchange for harvested marijuana may, in itself, constitute 'associating for the purpose of collectively cultivating marijuana.' Associating for the purpose of collectively cultivating marijuana does not require any prior relationship between the parties." The People declared they could not proceed under the instruction. The trial court dismissed the cases and the People appeal. (See People v. Chacon (2007) 40 Cal.4th 558, 565 [where the prosecution announces it is unable to proceed as a result of a pretrial ruling, the People may appeal the order of dismissal].) DISCUSSION A. Initial Appeal In the initial briefing, the People argued that the instruction was legally incorrect.