People ex rel. Lungren v. Peron (59 Cal. App. 4th 1383, 1997)

Opinion

PETERSON, P. J.

The People ex rel. Daniel E. Lungren, as Attorney General of the State of California, (the People) appeal from a trial court order which followed the enactment by initiative of Health and Safety Code section 11362.5, and modified a preliminary injunction the trial court had granted prior to passage of that initiative.

We hold the modifying order is legally defective. It wrongly allows respondents Dennis Perón and Beth Moore to resume and continue conduct that was properly enjoined by the preliminary injunction and remains criminally proscribed by section 11360 after the enactment of section 11362.5. The trial court’s error was further compounded by the failure of its order to properly and legally define the conduct to be enjoined.

We, therefore, will order vacation of the order of modification and reinstatement of the preliminary injunction in effect prior to the modification.

I. Facts and Procedural History

Section 11360(a) provides that every person who “transports, imports into this state, sells, furnishes, administers, or gives away” any marijuana is guilty of a felony. Sections 11357 and 11358, respectively, prohibit the possession and the cultivation of marijuana; section 11359 prohibits the possession for sale of marijuana; section 11361 prohibits the involvement of minors in the sale or use of marijuana; and section 11366 makes it a crime to maintain “any place for the purpose of unlawfully selling, giving away, or using [marijuana].”

Section 11570 states: “Every building or place used for the purpose of unlawfully selling, serving, storing, keeping, manufacturing, or giving away any [marijuana], and every building or place wherein or upon which those acts take place, is a nuisance which shall be enjoined, abated, and prevented, and for which damages may be recovered, whether it is a public or private nuisance.”

Invoking section 11570, the People filed a complaint to enjoin respondents from selling or furnishing marijuana at a premises in San Francisco known as the Cannabis Buyers’ Club. Supporting the complaint are declarations from San Francisco police officers, agents of the California Bureau of Narcotics Enforcement, and agents of the Federal Drug Enforcement Administration. These declarations, which were not disputed by other evidence, generally demonstrate an indiscriminate and uncontrolled pattern of sale to thousands of persons among the general public, including persons who had not demonstrated any recommendation or approval of a physician and, in fact, some of whom were not under the care of a physician, such as undercover officers. Young children were seen wandering in and out of the premises, and some persons who had purchased marijuana on respondents’ premises were reselling it unlawfully on the street. The declarations also reveal that respondents were importing marijuana, in violation of section 11360(a).

The trial court initially granted a temporary restraining order; and on November 4, 1996, it issued a preliminary injunction enjoining respondents from using the premises “for the purpose of selling, storing, keeping or giving away [marijuana].”

Following the issuance of the preliminary injunction, the voters passed Proposition 215, the “Medical Use of Marijuana” initiative, which added section 11362.5. Section 11362.5 provides, in relevant part: “(d) Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician. [*][] (e) For the purposes of this section, ‘primary caregiver’ means the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, or safety of that person.” (Italics added.)

Shortly after the passage of section 11362.5, respondents moved to modify the preliminary injunction. Their principal ground for modification was their assertion that they were ‘“primary caregiver[s]’” as defined by newly enacted section 11362.5(e) of the thousands of persons to whom they sold or furnished marijuana, and as such were authorized under state law to continue to distribute marijuana to those persons for whom the medical use of marijuana is permitted by section 11362.5.

The trial court then issued an “Order Modifying Preliminary Injunction” which states: “[Respondents] shall not be in violation of the injunction issued by this Court if their conduct is in compliance with the requirements of [section] 11362.5. [Respondents] may possess and cultivate medicinal marijuana for their personal medicinal use on the recommendation of a physician or for the personal medicinal use of persons who have designated the [respondents] as their primary caregiver pursuant to [section] 11362.5(e), whose physician has recommended or approved the use of medicinal marijuana either orally or in writing to the [respondents], [<][] [Respondents] shall maintain records showing the primary caregiver designation for persons who have so designated the [respondents] and such persons’ physician recommendation regarding the use of medicinal marijuana. [Respondents] shall maintain records showing monies expended and received as reimbursement of expenditures including overhead for their activities relating to the provision of medicinal marijuana. [SO Except as set forth above, the terms and conditions of the preliminary injunction remain in effect.” The People appeal from this order modifying the injunction.

On this appeal from the order modifying the preliminary injunction order, there is no evidence of respondents’ conduct or of any activity at the subject premises subsequent to the issuance of the preliminary injunction of November 4, 1996, or to the enactment of section 11362.5 and the trial court’s modification order. The People are also seeking a permanent injunction in the trial court, which will involve a trial of respondents’ conduct subsequent to the enactment of section 11362.5. (See, e.g., 6 Witkin, Cal. Procedure (4th ed. 1997) Provisional Remedies, § 287, pp. 228-229.)

II. Discussion

A. Overview

It should first be noted that the complaint and all the competent evidence obtained and presented in support of the preliminary injunction involve conduct prior to the enactment of section 11362.5 and the order modifying the preliminary injunction. That conduct, which was criminal in nature, has been enjoined as requested by the People. The trial court did not actually dissolve the preliminary injunction. In essence, its modification order merely states the obvious: that respondents will not be in violation of the injunction if their conduct conforms to law. The trial court did not specify what conduct of respondents would or would not conform to the law, and thereby left the legal limits on respondents’ conduct effectively undefined.

The People concede that the injunction should not prohibit respondents “from exercising rights as a patient or a bona fide primary caregiver,” contending, however, that respondents are not primary caregivers, and that the modification order itself violates section 11362.5, to the extent the order allows or appears to allow marijuana sales, on any assertedly “non-profit” basis, to occur on an effectively legalized basis.

The preliminary injunction, the modification of which is in question here, was sought and was initially granted under the terms of section 11570, which provide in pertinent part: “Every building or place used for the purpose of unlawfully selling, serving, storing, keeping, manufacturing, or giving away any controlled substance, . . . is a nuisance which shall be enjoined, abated, and prevented, and for which damages may be recovered, whether it is a public or private nuisance.”

As Division Four of the First Appellate District has held, section 11570 requires that the owners and operators of any “ ‘drug house’ ” be enjoined from continuing to operate such a drug sales facility. (See Lew v. Superior Court (1993) 20 Cal.App.4th 866, 870-871 [25 Cal.Rptr.2d 42] (Lew).)

However, respondents moved to modify the injunction under the terms of the new section 11362.5, which provides, in pertinent part: “(d) Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.” Under recent authority from Division Two of the First Appellate District, section 11362.5 provides a “partial defense” to charges of possession of marijuana, but not to charges of selling marijuana or possessing marijuana for sale. (See People v. Trippet (1997) 56 Cal.App.4th 1532, 1547, 1550 [66 Cal.Rptr.2d 559], review den. Nov. 25, 1997 (S064580) (Trippet).)

We are required to consider here, as a matter of first impression, the effect of section 11362.5 on section 11570, having in mind the holdings of Lew and Trippet. As we explain in reversing and remanding the trial court’s order of modification, we conclude:

1. The sale and possession for sale of marijuana continue to be proscribed by sections 11360(a) and 11359 following enactment of section 11362.5. The lack of profit to the seller or possessor does not exempt such activities from prosecution under those sections or from the provisions of section 11570.

2. Section 11362.5(d) only exempts a patient or the patient’s “primary caregiver” from prosecution under section 11357 (marijuana possession) and section 11358 (marijuana cultivation) when either of them possess or cultivate marijuana only for the patient’s personal medical purposes upon the written or oral recommendation or approval of a physician.

3. Respondents, operating a commercial enterprise selling marijuana to any qualified public purchaser, do not qualify as “ ‘primary caregiver[s]’ ” of each such purchaser under section 11362.5(e) by simply obtaining from the purchaser a designation as such prior to and as a condition of a marijuana sale to that person. One maintaining a source of marijuana supply, from which all members of the public qualified as permitted medicinal users may or may not discretionarily elect to make purchases, does not thereby become the party “who has consistently assumed responsibility for the housing, health, or safety” of that purchaser as section 11362.5(e) requires. (Italics added.) Respondents are, consequently, not immunized against the enforcement of section 11570 against them because they allegedly store, possess, and sell marijuana in the capacity of consistent primary caretakers of the health and safety of their numerous purchasers.

4. The general availability of injunctive relief under section 11570 against buildings and drug houses used to sell controlled substances is not affected by section 11362.5, and its application is not precluded on the record in the case at bench.

We will, accordingly, vacate the trial court’s January 10, 1997, order modifying the preliminary injunction because it erroneously allowed marijuana sales on any assertedly “non-profit” basis, erroneously misconstrued the application of section 11362.5 in permitting criminally proscribed conduct of respondents to be resumed and continued, and improperly ruled on the legal issues before it.

B. Marijuana Sales, Whether or Not for Projit, Continue to Be Proscribed in California Following Enactment of Section 11362.5

1. “Non-Projit” Sales or Furnishing of Marijuana

The trial court received no new, competent evidence precipitating its order modifying the preliminary injunction which it had theretofore granted on affidavits uncontradicted by other evidence. The order of modification was effectively predicated upon the enactment of section 11362.5 in the interim.

The trial court’s statements preceding its issuance of the order of modification, not literally included in the body of that order, clearly, albeit erroneously, set the stage for a principal contention respondents make on this appeal: that section 11362.5 authorizes them to sell and furnish marijuana to patients or their primary caregivers if they realize no profit therefrom.

The trial court said: “[fit’s not this Court’s intent to say that [respondents] cannot reopen their doors [at the Cannabis Buyers’ Club] . . . . HQ It’s my intent to say that to the extent that [respondents] do so, you better keep adequate records and you had better be sure you are not making any kind of a profit. ... [^] ... [^Q So if somebody [operates a business distributing marijuana] and does this for profit, they are going to have big problems. They will be in violation of . . . Section 11360. They are going to be in violation of . . . Section 11359. And that’s still the law.” (Italics added.)

The order modifying the preliminary injunction conforms with the court’s statement of its intent in making it: “[Respondents] shall [in running their business] maintain records showing monies expended and received as reimbursement of expenditures including overhead for their activities relating to the provision of medicinal marijuana.” (Italics added.)

Thus, the trial court clearly opined that section 11362.5 offered respondents a defense against charges of violating sections 11359 and 11360(a) (concededly “still the law”) for possessing for sale and for selling and furnishing marijuana to their customers, if no profit was realized from those activities. Respondents espouse this position on appeal, although the modification order does not literally, and could not legally, authorize respondents to sell marijuana. It, inter alia, permits them, as does section 11362.5, only to “possess and cultivate medicinal marijuana for their personal medicinal use on the recommendation of a physician or for the personal medicinal use of persons who have designated the [respondents] as their primary caregiver . . .” (italics added); and requires them, inter alia, to “maintain records showing monies expended and received as reimbursement of expenditures

Even if section 11362.5 did, arguendo, allow such activities if conducted on a “non-profit” basis, the modifying order did not preclude respondents from profiting therefrom; e.g., no guidance was provided as to what “overhead” was, or what limitations were placed on items designated as such by respondents. They remained free under the modifying order to designate or change in their discretion their own salaries, bonuses, or remuneration, claim these as expense deductions against gross sales receipts, and report no profits. By such means, literal conformity could be made with the court’s expressed intent respondents make no profit in the operation of their enterprise.

We find no support in section 11362.5 for respondents’ argument that sales of marijuana on an allegedly nonprofit basis do not violate state laws against marijuana sales. No provision in section 11362.5 so states. Sections 11359 and 11360 explicitly forbid both the sale and the “giv[ing] away” of marijuana. Section 11362.5(d) exempts “a patient” and “a patient’s primary caregiver” from prosecution for two specific offenses only: possession of marijuana (§ 11357) and cultivation of marijuana (§ 11358). It does not preclude prosecution under sections 11359 (possession of marijuana for sale) or 11360(a), which makes it a crime for anyone to “sell[],_/hzms7z[], administer[], or give\\ away” marijuana (italics added). This is particularly significant in interpreting section 11362.5, because at subdivision (b)(2) the statute provides: “Nothing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others . . . .” The Legislature had, theretofore, effectively determined in enacting sections 11359 and 11360 that the sale and giving away of marijuana, to which criminal penalties attach, constituted “conduct that endangers others . . . .”

As the Trippet court observed: “We note that [section 11362.5] specifically identifies only two penal provisions (out of five) from article 2 [of chapter 6] of division 10 of the Code .... It would have been a simple matter for the drafters to have included a reference to section 11360 within subdivision (d) of section 11362.5 [providing defenses to prosecution for violation of sections 11357 (possession) and 11358 (cultivation) of medicinal patients and their caretakers], . . . We may not infer exceptions to our criminal laws when legislation spells out the chosen exceptions with such precision and specificity. [Citations.]” (56 Cal.App.4th at p. 1550.) We agree with this analysis of Division Two of this district, in which our distinguished assigned colleague concurred.

The laws prohibiting the distribution of controlled substances, including marijuana, do not distinguish between sales or gifts; the lack of a profit is irrelevant to prosecution under section 11360. There is, therefore, no “nonprofit” defense to the laws against marijuana sales, and the trial court erred in finding such defense existed. Recognition of such a nonprofit defense to effectively legalize marijuana sales would allow marijuana to be sold as a loss leader or at cost in co-ops, grocery stores, liquor stores, etc., or to be provided on a complimentary basis at bars, restaurants, night clubs, or casinos, to “patient[s]” who designated the marijuana seller as their “primary caregiver.” This sort of subterfuge is certainly not what the voters approved or intended when they enacted the limited compassionate use for medical purposes which is defined by section 11362.5.

2. Sale and Possession for Sale of Marijuana Remain Prohibited After the Passage of Section 11362.5

Respondents contend that if patients and primary caregivers can lawfully cultivate and possess marijuana when medically recommended, an ambiguity results because they expose to criminal prosecution any third party who provides the marijuana or seeds of the marijuana plant to those lawfully entitled to possess the same who accept them with criminal immunity.

We first observe, generally, that nonparity of criminal treatment of furnishers and users of marijuana has long existed in the law of this state. A user of marijuana possessing less than 28.5 grams, for example, commits a misdemeanor punishable only by a fine of $100. (§ 11357, subd. (b).) The person selling “any” marijuana, i.e., less than 28.5 grams, commits a felony punishable by two, three, or four years in state prison. (§ 11360(a); Pen. Code, § 17, subd. (a).)

If there is any claimed ambiguity in the statutory language, we may consider indicia of the voters’ intent, which includes the analysis and arguments contained in the official ballot pamphlet. (Legislature v. Eu (1991) 54 Cal.3d 492, 504 [286 Cal.Rptr. 283, 816 P.2d 1309].) One of the arguments in favor of Proposition 215 states: “Proposition 215 allows patients to cultivate their own marijuana simply because federal laws prevent the sale of marijuana, and a state initiative cannot overrule those laws” (Ballot Pamp., Proposed Amends, to Cal. Const, with arguments to voters, Gen. Elec. (Nov. 5, 1996) p. 60, italics added.) An argument by the San Francisco District Attorney in rebuttal to opposition arguments states: “Proposition 215 does not allow ‘unlimited quantities of marijuana to be grown anywhere.’ It only allows marijuana to be grown for a patient’s personal use. Police Officers can still arrest anyone who grows too much, or tries to sell it.” {Id. at p. 61, italics added.) The ballot pamphlet analysis by the Legislative Analyst states: “This measure amends state law to allow persons to grow or possess marijuana for medical use .... [1] The measure also allows caregivers to grow and possess marijuana for a person for whom the marijuana is recommended. . . . [