P. v. Wood

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Filed 5/1/08 P. v. Wood CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
RANDALL HARRIS WOOD,
Defendant and Appellant.
A116693
(San Mateo County
Super. Ct. No. SC60825)
Defendant Randall Harris Woods appeals a judgment entered upon a jury verdict
finding him guilty of transporting marijuana. (Health & Saf. Code,1 § 11360, subd. (a).)
He contends the trial court erroneously instructed the jury on the transportation of
marijuana intended for his medical use and that his counsel rendered ineffective
assistance. We affirm.
I. BACKGROUND
Gary D’Souza, a South San Francisco police officer, stopped the car defendant
was driving on October 19, 2004, because he noticed a loud exhaust noise. While he was
speaking with defendant, he noticed the odor of unburnt marijuana. He asked defendant
if there was any marijuana in the car. Defendant said there was, and removed from the
glove compartment a plastic ziplock bag containing marijuana. D’Souza asked defendant
if he had a medicinal marijuana card. Defendant said he did, and gave D’Souza a card,
which he said he had because of chronic back and neck pain. D’Souza asked defendant if
1 All undesignated statutory references are to the Health and Safety Code.

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he had any more marijuana in the car, and defendant took two more plastic bags of
marijuana from the glove compartment. Additional officers arrived, and one of them
asked defendant if there was more marijuana in the car and said he would like to search
the car. Defendant said there was no more marijuana in the car, and after some
reluctance, agreed that the officers could search the vehicle. He then told the officers that
he had “caregiver status,” and that he had two pounds of marijuana in the back of his
vehicle. In the trunk of the car, the officers found two 5-gallon buckets, each filled with a
large plastic bag of marijuana. Defendant told D’Souza he planned to sell or give the
marijuana in the trunk of his car to marijuana establishments.
The amount of marijuana in the car (more than two pounds) would be enough for
approximately 1,600 “joints,” and at a rate of 10 joints per day—an unusually large
number—would last about five months.
Hanya Barth, the doctor who recommended the use of marijuana to defendant for
treatment of chronic pain, insomnia, and anxiety, testified at trial. She had not
recommended any particular amount to use, instead following her usual practice of
stating in her recommendation and telling defendant that he should use no more than was
required to alleviate his symptoms. She did not have an opinion as to how much
marijuana Wood should use, and when asked whether she was required to recommend a
particular amount to a patient, she explained that she was not allowed to do so. Barth did
not have defendant’s chart with her, and could not recall the details of his visits with her.
Nor could she give an opinion at trial about whether it would be appropriate for
defendant to smoke 10 joints of marijuana a day to treat his conditions.
Defendant testified in his own defense at trial. He acknowledged that he was
carrying the marijuana in his car and that the marijuana in the back weighed two pounds.
According to defendant, he had grown and harvested the marijuana in Grass Valley and
was returning home with it. He intended to keep it for his own use. He smoked five to
ten marijuana cigarettes a day, and said the amount in his car would have lasted him
about half a year. He grew his own marijuana because he could not afford to buy it, and
believed he was legally entitled to “grow a crop for a year.”

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The jury found defendant not guilty of possession of marijuana for purposes of
sale (§ 11359) and guilty of transporting marijuana (§ 11360, subd. (a)).
II. DISCUSSION
A. The Jury Instructions
Defendant contends the trial court erred in instructing the jury on the law
applicable to transporting medicinal marijuana. The trial court instructed the jury as
follows: “The possession or transportation of marijuana is lawful, one, where its medical
use is deemed appropriate and has been recommended or approved, orally or in writing,
by a physician; two, the physician has determined that the person’s health would benefit
from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain,
spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana
provides relief; three, the marijuana possessed or transported was for the personal
medical use of the patient; and four, the quantity of marijuana possessed and the form in
which it was possessed were reasonably related to the patient’s then current medical
needs, not exceeding eight ounces of dried marijuana per qualified patient unless the
qualified patient or primary caregiver has a doctor’s recommendation that this quantity
does not meet the qualified patient’s medical needs, in which case the qualified patient or
primary caregiver may possess an amount of marijuana consistent with the patient’s
needs.” Defendant contends that this instruction was erroneous to the extent it imposed a
presumptive eight-ounce cap on the amount of marijuana a patient could transport
without a doctor’s recommendation.
The Compassionate Use Act of 1996 (the CUA) (§ 11362.5), approved by the
voters as Proposition 215 in the November 5, 1996, general election, provides that those
who obtain and use marijuana for specified medical purposes at a physician’s
recommendation are not subject to certain criminal sanctions. Although it provides an
affirmative defense to the crimes of possessing marijuana (§ 11357) and cultivating
marijuana (§ 11358), it does not provide a defense to the crime of transporting marijuana.
(§ 11362.5, subd. (d); People v. Wright (2006) 40 Cal.4th 81, 84 (Wright); People v.
Trippet (1997) 56 Cal.App.4th 1532, 1543-1544 (Trippet).) Nevertheless, the court in

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Trippet concluded that the CUA provided an implied defense to a charge of transporting
marijuana, subject to the requirement that “the quantity transported and the method,
timing and distance of the transportation are reasonably related to the patient’s current
medical needs.” (Trippet, supra, 56 Cal.App.4th at pp. 1550-1551.) After a conflict
arose as to whether the CUA provided a defense to transportation of marijuana in a
vehicle (see People v. Young (2001) 92 Cal.App.4th 229, 237), the Supreme Court
granted review in Wright to resolve the issue. (Wright, supra, 40 Cal.4th at pp. 84-85.)
In 2003, while Wright was pending before the Supreme Court, the Legislature
enacted the Medical Marijuana Program (the MMP) (§ 11362.7 et seq.), which was
intended in part to address issues not included in the CUA. (Stats. 2003, ch. 875, No. 13,
West’s Cal. Legis. Service; Wright, supra, 40 Cal.4th at p. 85.) Two provisions of the
MMP are particularly relevant here. First, the MMP provides that a “qualified patient” or
the holder of a medical marijuana identification card shall not be criminally liable for
transporting marijuana “for his or her own personal use.” (§ 11362.765, subds. (a) &
(b)(1).) Second, section 11362.77 provides that: “(a) A qualified patient or primary
caregiver may possess no more than eight ounces of dried marijuana per qualified patient.
. . . [¶] (b) If a qualified patient or primary caregiver has a doctor’s recommendation that
this quantity does not meet the qualified patient’s medical needs, the qualified patient or
primary caregiver may possess an amount of marijuana consistent with the patient’s
needs.”
The issue in Wright was whether the defendant was entitled to a CUA instruction
on the transportation charge. He had been arrested after being found with slightly more
than a pound of marijuana in his car, and charged with possessing marijuana for sale
(§ 11359), transporting marijuana (§ 11360, subd. (a)), and driving on a suspended or
revoked license (Veh. Code, § 14601.1, subd. (a)). (Wright, supra, 40 Cal.4th at p. 86.)
Defendant’s doctor testified that he had recommended to defendant, approximately three
months before his arrest, that defendant use a “self-regulating” dose of marijuana to
alleviate his medical problems. (Id. at pp. 85-87.) Following defendant’s arrest, the
doctor saw him again. They discussed the fact that defendant preferred to eat marijuana,

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which required a larger amount of marijuana than smoking it to achieve the same effect.
The doctor wrote a letter approving the defendant’s use of a pound of marijuana every
two or three months, and he testified that that amount was consistent with the manner in
which the defendant stated he took marijuana. (Id. at p. 87.) The Supreme Court
concluded that the MMP applied to the case. (Wright, at p. 92.) In doing so, it noted that
although enactment of the MMP had rendered moot the conflict between Trippet and
Young as to whether the CUA provided a defense to a charge of transportation of
marijuana, “Trippet’s test for whether the defense applies in a particular case survived the
enactment of the MMP and remains a useful analytic tool to the extent it is consistent
with the statute.” (Wright, at p. 92 & fn. 7.)
Among the claims of the Attorney General that the court rejected in Wright was
the contention that defendant was not entitled to the protections of the MMP because he
had more than eight ounces with him. In doing so, the court stated: “[Section 11362.77,
subdivision (b)] provides that a qualified patient may, pursuant to a doctor’s
recommendation that a greater amount is required for the patient’s medical needs,
‘possess an amount of marijuana consistent with the patient’s needs.’ [Citation.]
Moreover, the sponsors of Senate Bill No. 420 (2003-2004 Reg. Sess.) made clear that,
although couched in mandatory terms, the amounts set forth in section 11362.77,
subdivision (a) were intended ‘to be the threshold, and not a ceiling.’ (Historical and
Statutory Notes, 40 pt. 1 West’s Ann. Health & Saf. Code (2006 supp.) foll. § 11362.7,
p. 192); Gonzales v. Raich [(2005)] 545 U.S. 1, 31, fn. 41 . . . [noting that ‘the quantity
limitations [set forth in § 11362.77, subdivision (a)] serve only as a floor’].) In this case,
defendant presented testimony at trial by his doctor that the amount of marijuana found in
his possession at the time of his arrest was appropriate in light of his medical needs and
the manner in which he used the marijuana, e.g., eating it for the most part, rather than
smoking it.” (Wright, supra, 40 Cal.4th at p. 97.) The court concluded the jury should
have been instructed on the CUA defense to the transportation charge. (Wright, at p. 98.)
Defendant contends that, under Wright, the jury instruction should not have
included the statement that defendant’s lawful possession could not exceed eight ounces

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without a doctor’s recommendation that this amount did not meet his needs. He points to
the comment in Wright that the Trippet test “remains a useful analytic tool” (Wright,
supra, 40 Cal.4th at p. 92, fn. 7), and argues that rather than looking to the eight-ounce
limitation of section 11362.77, the court should apply the Trippet test—whether “the
quantity transported and the method, timing and distance of the transportation are
reasonably related to the patient’s current medical needs.” (Trippet, supra, 56
Cal.App.4th at pp. 1550-1551.) In effect, defendant asks us to ignore the limitation
contained in the MMP. We cannot do so. As our Supreme Court stated in Wright, the
Trippet test remains a useful tool “to the extent it is consistent with the [MMP].” (Wright,
supra, 40 Cal.4th at p. 92, fn. 7, italics added.) Reading Wright, Trippet, and the MMP
together, we conclude a patient may possess an amount of marijuana that is reasonably
related to his or her current medical needs, but if that amount exceeds eight ounces, a
doctor’s recommendation to that effect is required. It appears possible from Wright that a
defense may be established even if the doctor did not make the specific recommendation
until after the defendant was found in possession of marijuana, but Wright does not
dispense with the requirement of a recommendation.2 (Wright, at pp. 86-87, 97.)
The question remains, however, whether the MMP limits to eight ounces the
amount of marijuana a patient may transport without a doctor’s recommendation. By its
literal terms, the limitation applies to the possession of marijuana: Section 11362.77,
subdivision (a) provides that a qualified patient may possess no more than eight ounces of
dried marijuana, and subdivision (b) provides that the patient may possess an amount
consistent with his or her needs if he or she has a doctor’s recommendation that this
2 We note that the acts in question in Wright took place before the Legislature had
enacted the MMP, and accordingly the defendant would have had no occasion to seek a
recommendation that complied with the limitations of section 11362.77. Here, of course,
defendant was arrested after the enactment of the MMP. We need not consider whether
this would make a difference, however, because here, there is no evidence that a doctor
concluded that a two-pound supply of marijuana was necessary to meet defendant’s
medical needs.

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amount would not meet the patient’s needs.3 Section 11362.765, however, which
explicitly extends the medical marijuana defense to the crime of transportation of
marijuana, states that the defense is available to a patient “who transports or processes
marijuana for his or her own personal medical use.” (Id., subd. (b), italics added.) A
construction that would allow a patient to transport more marijuana for personal medical
use than he or she was allowed to possess for such use would be irrational. We conclude
that the limitations of section 11362.77 apply to transportation of marijuana. Indeed, our
Supreme Court in Wright appeared to assume that it did so, explaining that the jury
should have been instructed on a CUA defense to the crime of transportation of marijuana
where the defendant’s doctor had testified that the amount the defendant had in his
3 Presumably based on this statute, CALJIC No. 12.24.1 (2005 rev.), which the
trial court adapted, provides in pertinent part as follows: “The [possession] [or]
[cultivation] [or] [transportation] of marijuana is not unlawful when the acts of
[defendant] [a primary caregiver] are authorized by law for compassionate use. The
[possession] [or] [cultivation] [or] [transportation] of marijuana is lawful (1) where its
medical use is deemed appropriate and has been recommended or approved, orally or in
writing, by a physician; (2) the physician has determined that the person’s health would
benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic
pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana
provides relief; [and] (3) the marijuana [possessed] [cultivated] [transported] was for the
personal medical use of [the patient] [_____] [; and (4) the quantity of marijuana
[[possessed] [or] [cultivated], and the form in which it was possessed were reasonably
related to the [patient’s] [_____] then current medical needs, not exceeding [(limits)]
[eight ounces of dried marijuana per qualified patient] [six mature or twelve immature
marijuana plants per qualified patient] unless the [qualified patient] [or] [[primary
caregiver] has a doctor’s recommendation that this quantity does not meet the qualified
patient’s medical needs, in which case the [qualified patient] [or] [[primary caregiver]
may possess an amount of marijuana consistent with the patient’s needs.] [transported,
and the method, timing and distance of the transportation were reasonably related to the
[patient’s] [_____] then current medical needs.]” (This instruction has been quoted
exactly as it appears in the current edition of CALJIC, including additional and missing
brackets.) Although, as the trial court pointed out, the form of this instruction is
confusing, it appears that the instruction is meant to apply the eight-ounce limitation to
the possession or cultivation of marijuana, but not to transportation. The instruction, as
given, tracked CALJIC No. 12.24.1, but did not include the final clause related to
transportation.

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vehicle—an amount in excess of the eight-ounce limit—was consistent with his medical
needs. (Wright, supra, 40 Cal.4th at p. 97.)
The instruction as given informed the jury that the possession or transportation of
marijuana is lawful where certain conditions are met, including where “the quantity of
marijuana possessed and the form in which it was possessed were reasonably related to
the patient’s then current medical needs, not exceeding eight ounces of dried marijuana,”
without a doctor’s recommendation that more was necessary to meet the patient’s needs.
(Italics added.) To the extent the jury understood this instruction to set limitations on the
amount of marijuana a patient could transport, we conclude the jury was not misled
about the applicable law.
As a result, we also reject defendant’s contention that the trial court erred in not
instructing the jury pursuant to CALCRIM No. 2361, an instruction to be given when a
defendant is charged with transporting or giving away more than 28.5 grams of
marijuana. (§ 11360, subd. (a)).4 CALCRIM No. 2361 states in pertinent part:
“[Possession or transportation of marijuana is not unlawful if authorized by the
Compassionate Use Act. The Compassionate Use Act allows a person to possess or
transport marijuana for personal medical purposes [or as the primary caregiver of a
patient with a medical need] when a physician has recommended [or approved] such use.
The amount of marijuana possessed or transported must be reasonably related to the
patient’s current medical needs. In deciding if marijuana was transported for medical
purposes, also consider whether the method, timing, and distance of the transportation
were reasonably related to the patient’s current medical needs. . . .” This instruction does
not mention the eight-ounce limitation found in the MMP. Similarly, CALCRIM
No. 2375, the compassionate use defense to a charge of simple possession of marijuana,
does not mention the limitation. Indeed, the bench notes to both instructions rely on the
CUA, and do not refer to the MMP. This apparent oversight on the part of the drafters of
4 Section 11360, subdivision (a) treats transportation or sale of marijuana as a
felony. Subdivision (b) provides that transportation or sale of less than 28.5 grams of
marijuana is a misdemeanor.

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the CALCRIM instructions does not change our conclusion that the limitation we have
discussed applies not only to simple possession of marijuana but also to transportation of
marijuana for the patient’s own personal medical use.
B. Ineffective Assistance of Counsel
Defendant contends his counsel rendered ineffective assistance by failing to
investigate the facts of his case in order to support the “reasonable relation” prong of the
compassionate use defense. He contends that under the Trippet test, the relevant standard
for determining whether he was within the protection of the CUA was whether the
quantity transported and the method, time and distance of the transportation were
reasonably related to his current medical needs, and that his counsel presented inadequate
evidence that the amount of marijuana he was transporting satisfied that test. In
particular, he contends, his counsel failed to prepare Barth adequately to testify and did
not ask her whether the amount of marijuana he possessed was reasonably related to his
needs.5
The standard for evaluating a claim of ineffective assistance of counsel is well
established. First, the defendant must show that counsel’s performance was deficient.
“ ‘This requires a showing that “counsel’s representation fell below an objective standard
of reasonableness.” . . . In evaluating a defendant’s showing of incompetence, we accord
great deference to the tactical decisions of trial counsel.’ ” (In re Jackson (1992)
3 Cal.4th 578, 601, disapproved on another ground in In re Sassounian (1995) 9 Cal.4th
535, 545, fn. 6.) Second, the defendant must show prejudice as a result of counsel’s
alleged incompetence. “ ‘ “It is not enough for the defendant to show that the errors had
some conceivable effect on the outcome of the proceeding. . . . [¶] The defendant must
5 The district attorney argued at the outset of trial that defendant’s medical
marijuana card and Barth’s written recommendation would be inadmissible hearsay
unless Barth authenticated them. The trial court indicated that it was “inclined to agree
with the People’s position.” Defendant’s counsel told the court at the outset of trial that
he had “dropped the ball” in failing to subpoena Barth to authenticate the records because
he had not believed there would be an evidentiary issue. Although he had not previously
subpoenaed Barth, he succeeded in having her testify at trial. However, Barth had not
reviewed defendant’s chart before testifying.

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show that there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” ’ ” (Jackson, supra, 3 Cal.4th at
p. 601.)
This burden is difficult to carry on direct appeal, because the record often contains
no indication of why counsel acted in a particular way, or failed to do so. (People v.
Lucas (1995) 12 Cal.4th 415, 437.) If “ ‘ “the record on appeal sheds no light on why
counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked
for an explanation and failed to provide one, or unless there simply could be no
satisfactory explanation,” the claim on appeal must be rejected.’ ” (People v. Mendoza
Tello (1997) 15 Cal.4th 264, 266.) In such a case, the claim of ineffective assistance is
more appropriately decided in a habeas corpus proceeding. (Id. at pp. 266-267.)
The record does not make clear why defendant’s counsel failed to ask Barth
whether the amount of marijuana defendant had in the car was reasonably related to his
medical needs, and—not being privy to any conversation they had before she testified—
we cannot conclude there could be no satisfactory explanation for not doing so. In any
case, defendant has not met his burden to show that he suffered prejudice. As we have
already discussed, under the MMP, defendant could transport only eight ounces of
marijuana without a doctor’s recommendation that he needed more to meet his medical
needs. He concededly had more than four times that amount. Nothing in the record
indicates that he had any special need for a greater amount, unlike the defendant in
Wright, or that Barth would have testified that eight ounces did not meet his medical
needs. In the absence of any such evidence, we will not speculate about what her
testimony might have been.

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III. DISPOSITION
The judgment is affirmed.
________________________
RIVERA, J.
We concur:
___________________________
RUVOLO, P.J.
___________________________
SEPULVEDA, J.

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