P. v. Khoury CA2/1

Filed 3/21/13 P. v. Khoury CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, B239108

Plaintiff and Respondent, (Los Angeles Super. Court Nos. PA066963, PA069046, PA066818) v.

RICHARD KHOURY,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Cynthia L. Ulfig, Judge. Affirmed. Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris Attorney General, Dane R. Gillette, Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Michael R. Johnsen and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Richard Khoury, a qualified medical marijuana patient, operated three medical marijuana shops in the cities of Northridge, Van Nuys and Encino. In 2010 and 2011, the Los Angeles Police Department executed search warrants at the shops and Khoury’s home, seizing marijuana, cash, scales, computers, receipts and business records. Khoury was charged with cultivating marijuana and possession of marijuana for sale. (Health & Safety Code, §§ 11358, 11359.) He pleaded not guilty.1 Prior to trial, Khoury filed a notice that he would rely on an affirmative defense provided by the Medical Marijuana Program Act, Health and Safety Code2 section 11362.7 et seq. Section 11362.775 provides: “Qualified 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 marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under Section 11357 ([possession of marijuana]), 11358 ([cultivation of marijuana]), 11359 [(possession of marijuana for sale)], 11360 [(transporting, importing, selling, furnishing, or giving away marijuana)], 11366 [(maintaining a place for the sale, giving away, or use of marijuana)], 11366.5 [(making real property available for the manufacture, storage, or distribution of controlled substances)], or 11570 [(abatement of nuisance created by premises used for manufacture, storage, or distribution of controlled substance)].” Khoury argued he cultivated and possessed marijuana as part of the operation of a medical marijuana collective within the meaning of section 11362.775. At a hearing on the matter Khoury represented he would prove he operated a collective and each person who received marijuana from his operation was a member of the collective. Under questioning by the court Khoury’s counsel admitted that of approximately 4,000