People v. Jones CA2/6

Filed 5/7/14 P. v. Jones CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B242313 (Super. Ct. No. F455621) Plaintiff and Appellant, (San Luis Obispo County)

v.

RICHARD NEWTON JONES,

Defendant and Respondent.

The People appeal from the order dismissing the information following the People's declaration of inability to proceed. (Pen. Code, § 1238, subd. (a)(8).) The information charged Richard Newton Jones with two counts of selling or transporting marijuana (Health & Saf. Code,1 § 11360, subd. (a)) and one count of possessing marijuana for sale (§ 11359). The People requested a dismissal after the trial court denied their motion to preclude Jones from raising the Compassionate Use Act (CUA; § 11362.5) and the Medical Marijuana Program Act (MMPA; § 11362.7 et seq.) as an affirmative defense. The court also ruled it would instruct the jury on the defense with an instruction submitted by Jones rather than one offered by the People.

1 All further undesignated statutory references are to the Health and Safety Code.

The People contend that Jones is not entitled to assert the CUA and MMPA defense as a matter of law because (1) neither act authorizes the sale of marijuana or "retail marijuana delivery services," and (2) the MMPA does not apply to dispensaries that simply provide marijuana to patients in exchange for money. We affirm. FACTS AND PROCEDURAL HISTORY Jones was the owner of Santa Barbara Collective (SBC), a medical marijuana dispensary duly registered as a California corporation. SBC did not have a storefront and operated exclusively as a delivery service. At all relevant times, Jones possessed a valid recommendation for medical marijuana. In late 2010, the San Luis Obispo Police Department, in conjunction with the now-defunct San Luis Obispo Narcotics Task Force, began an undercover investigation targeting several medical marijuana dispensaries, including SBC. To further that investigation, San Luis Obispo Police Detective Amy Chastain obtained a medical marijuana recommendation under an assumed name and purported to live in an apartment secured by the City of San Luis Obispo. Detective Chastain called Jones and arranged to have one-eighth of an ounce of marijuana delivered to her on November 10, 2010. Jones notified Chastain that the marijuana would cost $50. When Jones arrived at Chastain's apartment, he asked for a copy of her medical marijuana recommendation. Jones told Chastain he had run out of SBC's membership forms. He then sold Chastain an eighth of an ounce of marijuana for $50. On November 17, 2010, Jones delivered another eighth of an ounce of marijuana to Chastain for $50. Later that same day, he delivered yet another eighth of an ounce of marijuana for $55. Jones was arrested later that same day as he was driving back to Santa Barbara. The police found individually packaged marijuana and SBC paperwork in Jones's car. Jones told the police he owned SBC and supplied its members with marijuana grown by other members on a non-profit basis. Prior to trial, the prosecution moved in limine to preclude Jones from presenting an affirmative defense under the CUA and the MMPA. The prosecution