P. v. Lavalle

1
Filed 5/13/15 P. v. Lavalle CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
KIM LAVALLE,
Defendant and Appellant.
A139018
(Mendocino County Super. Ct.
No. SCUK-CRCR-12-21822)
Defendant Kim Lavalle was convicted of one felony count of unlawfully
transporting marijuana.1 On appeal, she contends that her conviction must be overturned
because the trial court (1) admitted into evidence text messages obtained in violation of
the Fourth Amendment; (2) denied her the opportunity to present a collective-cultivation
defense under section 11362.775; and (3) incorrectly instructed the jury in four ways.
We reject these claims and affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
On January 11, 2012, Officer James Scott of the California Highway Patrol (CHP)
pulled Lavalle over south of Ukiah after measuring the speed of the pickup truck she was
driving as 78 miles per hour in a 55-mile-per-hour zone. Lavalle was the driver of the
truck and its only occupant. As he was talking to Lavalle, Officer Scott smelled
1 Lavalle was convicted under Health and Safety Code section 11360, subdivision (a).
All further statutory references are to the Health and Safety Code unless otherwise noted.

-- 1 of 25 --

2
marijuana in the passenger compartment, and he asked her if she was carrying any of that
drug. She responded that “she had a little,” at which point Officer Scott ordered her out
of the truck. He then picked up “a garbage bag that was behind the driver’s seat that
looked full” and felt “individual packages inside about the size of a football,” which he
knew was a common way to package marijuana. He opened the garbage bag and saw
individual bags that contained “green marijuana . . . [¶] . . . [¶] . . . in bud form.” The
bags were not labeled, and this indicated to Officer Scott that the marijuana inside was
most likely for “commercial distribution” and not meant for medicinal use. He then
seized the bags, which turned out to contain approximately eight pounds of marijuana.
Lavalle told Officer Scott that she was headed to San Francisco from Laytonville,
where she had been “doing some general maintenance work and clean-up work for some
friends.” She said that the friends were named Juan and Burt, but she could not provide
their last names or the address or phone number of their residence. As she was talking,
she appeared “[v]isibly upset” and cried at times. She told Officer Scott that “[s]he was a
painting contractor and business was extremely slow,” “she had lost her home,” and
“[s]he was going to take the marijuana to San Francisco and try to sell it to a cannabis
club.” He then arrested her and transported her to a CHP office. Under further
questioning, she stated that she intended to take the marijuana to a cannabis club called
Emmalyn’s in San Francisco and “put it on consignment,” whereby she would “get a
portion of the proceeds” if it sold. She made no statements to suggest that the marijuana
was meant for any patient who could lawfully use it for medicinal purposes.
At the CHP office, another officer, Officer Robert Simas, seized from Lavalle a
cell phone that contained various text messages that were eventually introduced into
evidence. One message sent from Lavalle’s phone two days before her arrest said, “I got
the 10 ready. Will call u in the late morning 4 addrs.” The next message sent from her
phone said, “Ready to go out Wed. Ovr ni.” Officer Simas testified that he had often
seen similar messages when investigating narcotics cases. According to him, “the 10”
referred to ten pounds of marijuana and the reference to calling for “addrs” meant that “if
they’ve got the product, they’re going to take that product and ship it off through U.S.

-- 2 of 25 --

3
Postal Service, Fed Ex, UPS, whatever carrier they choose to use, and they’ll give them
the addresses of where these things need to go, they’ll get shipped.” Finally, the message
saying “[r]eady to go out Wed. Ovr ni” meant that the marijuana would be shipped
overnight on Wednesday. Officer Simas testified that when he showed these messages to
Lavalle, “she just put her head down and sulked.”
Officer Simas explained that another set of text messages on Lavalle’s cell phone
helped him determine that the exchange about “the 10” was related to marijuana. A
message received by Lavalle’s phone in late December 2011 from a contact named “Q
phily GhostProwlers” read, “Got customers to deal w/. But only if its exactly the same
smell quality & look. Yes grab it. No more OG its not the smelln like N.Y. sour. Ur not
checking4smell.” (Capitalization omitted.) A message sent from Lavalle’s phone in
response said, “Ok. Jerk is gone now. But I hear u on the og.” According to Officer
Simas, both “OG” and “N.Y. sour” referred to types of marijuana.
Only one defense witness testified at trial. Joseph Donato stated that he had
AIDS, used medical marijuana, and designated Lavalle as his “primary caregiver” in
December 2010. Originally, he took several pills a day “to counteract the side effects [of
his AIDS medicine],” but then two of his physicians recommended he begin using
medical marijuana. He calculated that he used approximately six ounces of marijuana a
week by smoking it, mixing it in his food and alcohol, and adding it to a topical lotion. A
document signed by one of Donato’s physicians in November 2011 and introduced into
evidence stated that Donato had been diagnosed with a qualifying condition and that “the
use of medical marijuana is appropriate.” A copy of Donato’s medical marijuana
identification card reflecting an expiration date in October 2011 was also introduced into
evidence.
Donato testified that Lavalle owned and lived in the San Francisco building in
which he resided. He met her through a mutual friend, she offered to let him and his
partner live in the building rent free, and he moved into it in March 2011. Although
Lavalle originally indicated they would need to leave the apartment once she found
another tenant, Donato said “she never found another tenant [and] . . . [s]he likes us and

-- 3 of 25 --

4
she takes care of me.” In particular, Lavalle’s duties as his caretaker included giving him
rides to doctors’ appointments and providing him with marijuana. Although he initially
testified that she “cultivate[d]” and “gr[e]w” marijuana for him, he later stated that he did
not know where she obtained the marijuana she gave him and had “no idea” whether she
grew it herself. He could not provide any documentation of her status as his caregiver.
The jury found Lavalle guilty of unlawfully transporting marijuana, rejecting her
primary-caregiver defense that the transportation was lawful because the marijuana was
for Donato and she was his primary caregiver. The trial court suspended imposition of
the sentence and placed her on probation for three years on the condition that she serve
45 days in county jail.
II.
DISCUSSION
A. Lavalle’s Cell Phone Data Was Admissible Under the Good-Faith
Exception to the Exclusionary Rule.
Lavalle claims the warrantless search of her cell phone data after she was arrested
violated the Fourth and Fourteenth Amendments. Although she agrees that the search
was lawful under People v. Diaz (2011) 51 Cal.4th 84 (Diaz) at the time of her arrest and
trial, she argues that the intervening United States Supreme Court decision in Riley v.
California (2014) __ U.S. __, 134 S.Ct. 2473 (Riley) requires reversal. We disagree.
Under Davis v. United States (2011) __ U.S. __, 131 S.Ct. 2419, 2423-2424 (Davis), the
exclusionary rule is inapplicable when, as here, a search is conducted in reasonable
reliance on binding appellate precedent that is later overruled.2
Officer Simas testified that after Lavalle was taken to the CHP office, she asked to
make a phone call and “pulled a cell phone out of her pocket.” The officer “explained to
her that she couldn’t make a phone call at that moment and . . . seized the phone.” He
then examined the phone’s text messages and discovered the messages that were
ultimately admitted into evidence. Lavalle never filed a motion to suppress this evidence.
2 A case involving the same issue is currently pending before our state Supreme Court.
(People v. Macabeo, S221852.)

-- 4 of 25 --

5
In Diaz, our state Supreme Court held that “a warrantless search of the text
message folder of a cell phone” that occurred about 90 minutes after the defendant’s
arrest was valid under the Fourth Amendment as a search incident to arrest. (Diaz, supra,
51 Cal.4th at p. 88.) Diaz relied on a series of United States Supreme Court cases that
included United States v. Robinson (1973) 414 U.S. 218, which broadly held that after a
“ ‘lawful custodial arrest[,] a full search of the person is not only an exception to the
warrant requirement of the Fourth Amendment, but is also a “reasonable” search under
that Amendment,’ ” “whether or not the police have reason to believe the arrestee has on
his or her person either evidence or weapons” (the traditional justifications for the
exception for searches incident to arrest). (Diaz, at p. 91, quoting Robinson, at p. 235;
Chimel v. California (1969) 395 U.S. 752, 762-763.) Diaz reasoned that the
determinative issue was “whether [the] defendant’s cell phone was ‘personal property . . .
immediately associated with his person,’ ” answered in the affirmative, and held the
search was therefore valid. (Diaz, at p. 93.)
In Riley, the United States Supreme Court declined to extend the rule in United
States v. Robinson, supra, 414 U.S. 218 “to searches of data on cell phones, and h[e]ld
instead that officers must generally secure a warrant before conducting such a search,”
effectively overruling Diaz, supra, 51 Cal.4th 84. (Riley, supra, 134 S.Ct. at p. 2485.)
The high court explained that neither officer safety nor preservation of evidence justified
the search of data on a phone no longer within a defendant’s possession: while a cell
phone itself might be used as a weapon, “data on the phone can endanger no one,” and
while a phone’s data could be destroyed remotely by a third person, a search probably
would not help to prevent that. (Id. at pp. 2485-2487.) Moreover, given the large amount
of personal information stored on modern cell phones, the privacy concerns implicated by
data searches were far greater than those at play when other physical objects on a
defendant’s person were searched. (Id. at pp. 2488-2489, 2494-2495.) The court
concluded that any concerns about officer safety or the destruction of evidence were
better addressed on a case-by-case basis by, for example, the exception for exigent

-- 5 of 25 --

6
circumstances instead of by a blanket rule authorizing such searches without a warrant.
(Id. at pp. 2486-2488, 2499.)
Lavalle first argues that she did not forfeit the issue of the exclusionary rule’s
applicability even though she failed to raise it below, and we agree. Although Fourth
Amendment issues must generally be raised in the trial court (see People v. Hart (1999)
74 Cal.App.4th 479, 485), a failure to do so may be excused “where to require defense
counsel to raise an objection ‘would place an unreasonable burden . . . to anticipate
unforeseen changes in the law and encourage fruitless objections in other situations
where defendants might hope that an established rule of evidence would be changed on
appeal.’ ” (People v. De Santiago (1969) 71 Cal.2d 18, 22-23.) Although Diaz, supra,
51 Cal.4th 84 is no longer good law after Riley, supra, 134 S.Ct. 2473, it was binding at
the time of Lavalle’s arrest and trial. Accordingly, Lavalle’s failure to raise the issue
below is excusable. (See De Santiago, at p. 23.)
The Attorney General effectively concedes that the search was unlawful under
Riley, supra, 134 S.Ct. 2473, arguing instead that the text messages were properly
admitted under Davis, supra, 131 S.Ct. 2419. Davis considered whether the exclusionary
rule should be applied to evidence obtained lawfully under then-existing Eleventh Circuit
precedent when the precedent was later undermined by a United States Supreme Court
case. (Id. at pp. 2423, 2426.) Although the new rule announced in the later case applied
retroactively, the United States Supreme Court concluded that suppression of the
evidence was not automatically required because the issue whether the search was lawful
was separate from the issue of remedy. (See id. at pp. 2430-2431.) Emphasizing that the
“sole purpose” of the exclusionary rule “is to deter future Fourth Amendment violations,”
Davis relied on the good-faith exception to hold that “ ‘searches conducted in objectively
reasonable reliance on binding appellate precedent are not subject to the exclusionary
rule’ ” when that “precedent . . . is later overruled.” (Id. at pp. 2423-2424, 2426, 2429.)
We agree that even though the search here violated Lavalle’s Fourth Amendment
rights under Riley, supra, 134 S.Ct. 2473, the good-faith exception to the exclusionary
rule applies because the search was lawful under Diaz, supra, 51 Cal.4th 84 at the time it

-- 6 of 25 --

7
was conducted. As mentioned above, Lavalle concedes the search was lawful under
Diaz, and she does not offer any reason why it would have been unreasonable for Officer
Simas to have relied on that decision when conducting the search. (Cf. Davis, supra,
131 S.Ct. at p. 2435 (conc. opn. of Sotomayor, J.) [distinguishing situation where
“ ‘binding appellate precedent specifically authorize[d] a particular police practice’ ”
from “the markedly different question whether the exclusionary rule applies when the law
governing the constitutionality of a particular search is unsettled”], italics in original.)
Instead, she claims that Davis applies only when “the United States Supreme Court [has]
overruled its own Fourth Amendment precedents.” But this is clearly not the case: it was
Eleventh Circuit precedent, not United States Supreme Court precedent, that was
undermined in Davis itself. (Id. at p. 2426.) Lavalle does not offer, and we cannot
discern, any other reason why Davis does not control here.
Lavalle also argues that, even if the good-faith exception applies, we should
“ ‘recognize a limited exception’ ” to it. (Quoting Davis, supra, 131 S.Ct. at p. 2434.) In
Davis, the United States Supreme Court suggested that it “could, if necessary, recognize a
limited exception to the good-faith exception for a defendant who obtains a judgment
overruling one of [that court’s own] Fourth Amendment precedents.” (Ibid.) We fail to
see how this statement supports making an exception for Lavalle, who is not seeking to
overturn any precedent. She also suggests that we could make an exception “based on
the historical revulsion against unrestrained searches . . ., the historical recognition that
the warrant requirement is an important part of our machinery of government, and the
recent technological advances that have made the process of obtaining a warrant itself
more efficient.” But these concerns apply to all unlawful searches, not just the one here,
and in any event they do not free us to disregard Davis. Finally, she claims Davis’s
concern about “ ‘set[ting] the criminal loose in the community without punishment’ ” is
inapplicable here because she has already served jail time and has been on probation
since 2013. (Quoting Davis, at p. 2427.) But any time the applicability of the good-faith
exception arises on appeal, the defendant will have already been punished to some extent.
As we perceive no reason to make an exception by applying the exclusionary rule in this

-- 7 of 25 --

8
case, we conclude the unlawfulness of the cell phone search does not require reversal of
Lavalle’s conviction.
B. Lavalle Was Properly Precluded from Presenting a Collective-
cultivation Defense Because She Failed to Produce Sufficient Evidence
to Raise a Possibility the Defense Might Apply.
Lavalle claims the trial court erred by not allowing her to present a defense under
section 11362.775, which protects qualified individuals who associate to cultivate
medical marijuana (collective-cultivation defense). She also claims the court erred by not
permitting her to make an in camera offer of proof in support of her request to present
such a defense. We disagree with both contentions.
1. Additional facts.
As a result of Lavalle’s failure to timely disclose or subpoena documents, the trial
court prohibited Lavalle from introducing any documentary evidence except the
marijuana recommendation for Donato and one for another man, Bruce Rossignol.3 This
discovery ruling has not been challenged on appeal, but it is critical in understanding the
context of the court’s later ruling precluding Lavalle from presenting a collective-
cultivation defense.
After the discovery ruling, the trial court held a hearing under Evidence Code
section 402 (section 402) to determine whether Lavalle would be permitted to present a
collective-cultivation defense. At the section 402 hearing, as at trial, Donato testified that
he had AIDS, had a physician’s approval to use medical marijuana, and had designated
Lavalle as his “primary caregiver.” He also testified that he was acquainted with
Rossignol, whom he described as “the owner of [an] organization of helping medical
marijuana . . . . He just has the co-op there, the space that he’s trying to establish [as] a
dispensary or whatever you want to call it for medical marijuana.” On one occasion in
early 2011, Lavalle brought Donato to this space, and he obtained marijuana there after
establishing that he had a physician’s recommendation for it.
3 Donato’s medical marijuana identification card was introduced at trial by the
prosecution, not Lavalle.

-- 8 of 25 --

9
The trial court continued the hearing until after the prosecution presented its
evidence at trial. Before the hearing began again, Lavalle’s trial counsel stated, “Your
Honor, before Mr. Rossignol is brought in, perhaps I can suggest something that might
expedite all of this.” The court indicated it was “open to suggestion,” and Lavalle’s
counsel stated, “Okay. I’m not indicating that [Lavalle] is going to testify in the case, but
as far as . . . establishing the necessary elements of a [collective-cultivation] defense . . .,
I could make an offer of proof to the court, but that would be done in camera.” The
prosecutor objected that he had not received advance notice of the intention to seek an in
camera hearing, and the following discussing took place:
[LAVALLE’S COUNSEL]: Your Honor, the defense is prepared to go with
putting Mr. Rossignol on the stand. I was only trying to expedite—
[PROSECUTOR]: It hasn’t worked so far.
THE COURT: I don’t see anything having resulted in expedition. I’d like you to
go ahead and call Mr. Rossignol.
Rossignol then took the stand. He testified that he had a physician’s
recommendation for medical marijuana at the time of Lavalle’s arrest, and a document to
this effect was marked for identification. He knew Lavalle through his work cultivating
marijuana, which he began in 2010. Describing that work, he said, “We grow marijuana
for our collective of patients who associate for the [purpose of] . . . providing our
medicine to each other,” and he then clarified that “we” referred to “[t]he collective of
patients,” which numbered about 40 people. Rossignol’s girlfriend helped him run the
collective.
According to Rossignol, Lavalle had “joined [the] collective via [an] intake
process in the winter of 2011.”4 Her responsibilities included bringing plants to him,
“watering the plants . . . and monitoring their nutrient intake,” “going and meeting other
growers and learning their methods,” and, “when we don’t have any medicine
4 Rossignol initially stated that Lavalle was a member of the entity by virtue of “an intake
form where she provide[d] her recommendation for medical cannabis,” but the trial court
ordered that response stricken based on the discovery ruling.

-- 9 of 25 --

10
available[,] . . . sourcing other growers for medicine.” Rossignol testified that he was
aware Lavalle cared for Donato and that Donato was not a member of the collective. He
also mentioned that Lavalle called him from jail after she was arrested. No evidence was
presented, however, to suggest that the eight pounds of marijuana seized from her had
anything to do with his entity.
On cross-examination, Rossignol agreed that Lavalle’s trial counsel was the
attorney for his “enterprise,” was “aware of the documents that [the] enterprise gathers
and keeps together,” and was “the person who instructed [him] on [which] . . .
documents . . . [he] should have to properly run [the] enterprise,” including “documents
to show nonprofit operation” and “membership applications and verifications.”
Rossignol testified that the records of the entity were stored at its office space in San
Francisco. When questioned on re-direct, however, he clarified that Lavalle’s counsel’s
representation of the entity had terminated before Lavalle’s arrest and that counsel did
not maintain copies of the entity’s records.
After Rossignol finished testifying, the trial court addressed Lavalle’s trial counsel
as follows:
I don’t really think I need an offer of proof from your client either in
camera or elsewhere. . . . [Use of an] in camera hearing to preserve Fifth
Amendment rights could conceivably have some application to a case like
this . . . .
But, based on the testimony that I’ve heard from Mr. Donato and the
testimony that I’ve heard from Mr. Rossignol—if you want to call
[Rossignol’s girlfriend], you can do that. If you want to argue it now, you
can argue it now. I am mindful of the fact we have the jury waiting, but I
do want to get this right.
Do you want to argue it now or do you want to call another witness?
Lavalle’s trial counsel responded that he wanted to argue the issue. He contended
there was sufficient evidence that Lavalle was a member of the collective, that she was
Donato’s primary caregiver, and that the marijuana seized “was also in part for
Mr. Donato’s consumption as a lawful patient.” The prosecutor focused on the absence

-- 10 of 25 --

11
of business records, stating that even if there was a collective, it was “not a loosely
organized enterprise” but “a structured enterprise . . . which [has] been hidden from the
[trial] court and the prosecution.” He concluded, “[I]t’s very difficult to have that
collective explained to this jury when there’s just no evidence of its existence except
people coming in saying ‘believe me.’ ” Lavalle’s counsel disputed this characterization
of the entity and stated that “there has been testimony, at the very least, that there is a
collective . . . [and] that Miss Lavalle is a member of that collective in her capacity as Joe
Donato’s primary caregiver.”
The trial court ruled that Lavalle could not present a collective-cultivation defense.
The court observed that “in the course of a number of proceedings relating to pretrial and
pretrial discovery issues” Rossignol’s organization “was described as a . . . ‘loose
configuration of people,’ ” and the court had expected membership of “four [or] five or
so” people “without some sort of a cohesive real structure.” It also noted that a key
requirement was that a collective be nonprofit and that deciding whether that requirement
was met “is essentially a matter of records and recordkeeping.” The only documents
before it, however, were the two physician’s recommendations for Donato and Rossignol.
It concluded, “One of the things that I think I do in [an Evidence Code section] 402
[hearing] is . . . test whether the type of evidence that’s being proffered is [of] sufficient
believability, quality, credibility and all that to be offered up. [¶] I spent [time] . . .
attempting to come up [with] and review instructions so that we give the jury some
guidance consistent with [People v.] Jackson [(2012) 210 Cal.App.4th 525 (Jackson)]
about collectives and cooperatives. And the kind of points that I was looking at . . .
[included] processes to determine whether somebody’s a lawful patient, recordkeeping,
updating, financial records, whether or not a business was registered as a nonprofit, [and]
how they checked on their members to make sure that they . . . continued to have a valid
recommendation.”
Although the trial court had not decided whether the lack of records was
determinative when it still thought there was a “loose organization of people” and not “a
formal organization,” having heard Rossignol’s testimony, it could not see how the

-- 11 of 25 --

12
defense could be presented “with essentially no records . . . [and] testimony from people
who are, at best, unclear about critical elements of what’s involved . . . . [¶] . . . [¶] . . . I
don’t see how you can call these folks to testify about their organization when they’re
going to start testifying about this record and that record, and this procedure and that
procedure, and financial records and stuff, none of which [was] disclosed. And if Miss
Lavalle is a member, which . . . for purpose[s] of this ruling, I’m accepting . . ., . . . then,
she would know where to go for [those records]. And it is an ambush at trial. [¶] The
Evidence Code does not really permit that.”
2. The trial court did not err by refusing to permit Lavalle to
present a collective-cultivation defense.
Lavalle claims that she met her burden of production at the section 402 hearing
and was entitled to present a collective-cultivation defense. We disagree.
In 1996, voters passed Proposition 215 enacting the Compassionate Use Act of
1996 (CUA), which is intended to “ensure that seriously ill Californians have the right to
obtain and use marijuana for medical purposes where that medical use is deemed
appropriate and has been recommended by a physician” and that such “patients and their
primary caregivers . . . are not subject to criminal prosecution or sanction” for
“obtain[ing] and us[ing] marijuana for medical purposes.” (§ 11362.5, subd. (b)(1)(A)-
(B); People v. Colvin (2012) 203 Cal.App.4th 1029, 1034-1035.)
Several years later, the Legislature enacted the Medical Marijuana Program
(MMP), section 11362.7 et sequitur, which aimed, among other things, to “[c]larify the
scope of the application of the [CUA] and facilitate the prompt identification of qualified
patients and their designated primary caregivers in order to avoid unnecessary arrest and
prosecution of these individuals” by providing for a voluntary identification-card system
and “[e]nhanc[ing] the access of patients and caregivers to medical marijuana through
collective, cooperative cultivation projects.” (Stats. 2003, Ch. 875, § 1; People v. Kelly
(2010) 47 Cal.4th 1008, 1014; Jackson, supra, 210 Cal.App.4th at p. 534.) In particular,
section 11362.775 of the MMP established the collective-cultivation defense by
providing that “[q]ualified patients, persons with valid identification cards, and the

-- 12 of 25 --

13
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” a variety of statutes, including section 11360,
the one under which Lavalle was convicted. (§ 11362.775; Jackson, at p. 534.)
To establish a collective-cultivation defense under section 11362.775, a defendant
must “show that members of [a] collective or cooperative: (1) are qualified patients who
have been prescribed marijuana for medicinal purposes [or designated primary caregivers
of such patients], (2) collectively associate to cultivate marijuana, and (3) are not engaged
in a profit-making enterprise.” (Jackson, supra, 210 Cal.App.4th at p. 529.) Because the
defense negates an element of the crime (in this case, that the transportation must be
unlawful), a defendant has a “modest burden” to produce sufficient evidence of the
elements of the collective-cultivation defense to create a reasonable doubt whether the
crime was committed. (Id. at p. 533; see also People v. Mower (2002) 28 Cal.4th 457,
482-483.) “In determining whether that minimal burden has been met” and evidence of
the defense should be permitted, “ ‘the trial court must leave issues of witness credibility
to the jury.’ ” (Jackson, at p. 533.)
As we have discussed, the trial court held a section 402 hearing to decide whether
Lavalle would be allowed to present this defense. Section 402 “provides a procedure for
the . . . court to determine outside the presence of the jury whether there is sufficient
evidence to sustain a finding of a preliminary fact, upon which the admission of other
evidence depends.” (People v. Galambos (2002) 104 Cal.App.4th 1147, 1156.) As
Galambos explains, when a hearing under section 402 is used “to determine the existence
of a defense,” the relevant question is “whether all of the elements of [the] . . . defense
can be made out before the evidence of that defense is either excluded or admitted”
because “the relevance of the proffered defense[] depends upon the existence of facts
sufficient to establish the defense[’s] elements.” (Id. at p. 1157.) Although “[t]here is
some authority for the proposition that ‘the correct standard of proof for a preliminary
fact . . . is evidence sufficient to support a finding by a preponderance of the evidence,’ ”

-- 13 of 25 --

14
that standard of proof does not apply here because “no greater burden can be imposed on
the defendant at a pretrial section 402 hearing” than the burden the defendant has “to
prevail at trial.” (People v. Jones (2003) 112 Cal.App.4th 341, 350.) Thus, the relevant
question is whether Lavalle “produce[d] sufficient evidence” of the elements of a
collective-cultivation defense to create a reasonable doubt whether her transportation of
marijuana was unlawful. (Ibid.; see also People v. Baniani (2014) 229 Cal.App.4th 45,
52, 59-60 [applying reasonable-doubt standard to determine whether trial court erred by
not permitting CUA defense after hearing on prosecution’s section 402 motion].)
We review de novo the trial court’s refusal to permit Lavalle to present the
collective-cultivation defense. (See People v. Galambos, supra, 104 Cal.App.4th at
p. 1162.) In doing so, “we need not adopt the trial court’s reasons [for its ruling] because
‘ “ ‘a ruling or decision, itself correct in law, will not be disturbed on appeal merely
because given for a wrong reason. If right upon any theory of the law applicable to the
case, it must be sustained regardless of the considerations which may have moved the
trial court to its conclusion.’ [Citation.]” [Citation.]’ ” (Ibid.)
Lavalle contends the trial court erred as a matter of law when it said one purpose
of a section 402 hearing is “to test whether the type of evidence that’s being proffered is
[of] sufficient believability, quality, [and] credibility.” We agree this statement was
incorrect to the extent it suggested the court was making credibility determinations in
deciding whether to permit a collective-cultivation defense. (Jackson, supra,
210 Cal.App.4th at p. 533.) This does not resolve the matter, however, because we must
independently assess whether there was sufficient evidence produced to create a
reasonable doubt whether the transportation was unlawful, and for purposes of our review
we assume that Donato’s and Rossignol’s testimony was credible.
The trial court premised its ruling on Lavalle’s failure to produce evidence that the
collective was not operated for profit, and the parties focus their briefing on that

-- 14 of 25 --

15
element.5 Lavalle argues that sufficient evidence of the entity’s nonprofit status was
presented based on Rossignol’s testimony about the entity’s purpose of cultivating
marijuana for patients.6 She claims that the court “misconstrued Jackson[, supra, 210
Cal.App.4th 525] as a matter of law and erred [by ruling] that the absence of business
records precluded the defense.”
We agree with Lavalle that the failure to present records from an entity does not
automatically preclude a collective-cultivation defense. In People v. Orlosky (2015)
233 Cal.App.4th 257, the same division of the Fourth District that decided Jackson,
supra, 210 Cal.App.4th 525 considered whether there was sufficient evidence to permit
such a defense where the defendant presented evidence that he and another man
collaborated to cultivate marijuana together. (Orlosky, at pp. 262-263.) The trial court
had “explained that some level of formality was required to warrant application of the
defense, stating: ‘[W]hatever agreement [the other man] and [the] defendant had, I don’t
think that rises to the level of [a] collective’ because a collective requires ‘records,
agreements, and not just two guys hanging out together saying, “[H]ey, maybe we should
do this.’ ” (Id. at p. 270.) Although recognizing that “business formality has been
identified as a relevant evidentiary criterion that increases in probative value as the size
of the marijuana distribution enterprise increases,” Orlosky rejected any reading of
5 At our request, the parties submitted supplemental briefing on the significance of the
lack of evidence presented at the section 402 hearing that the eight pounds of marijuana
was cultivated or destined for Rossignol’s entity. (See Gov. Code, § 68081.) The
Attorney General argues that we should not rely on this circumstance to affirm the trial
court’s ruling because the tie between the marijuana and the entity was not a preliminary
fact that needed to be proved before the defense could be presented, and we will assume,
without deciding, that this is correct.
6 Although Lavalle does not concede that she had “a burden to prove a non-profit
enterprise,” she does not give any reason we should disregard Jackson, supra,
210 Cal.App.4th 525 on this point. Although People v. Colvin, supra, 203 Cal.App.4th
1029, the case she cites in arguing that she met the required elements, does not mention a
nonprofit requirement, we fail to see how anything in that decision is inconsistent with
such a requirement, particularly given that the entity at issue in that case was, indeed, “a
nonprofit corporation.” (Id. at pp. 1037-1038.)

-- 15 of 25 --

16
section 11362.775 to make such formality “a mandatory requirement that automatically
excludes all informal collective cultivation arrangements from the purview of the
collective cultivation defense.” (Orlosky, at p. 271, italics in original.) Instead, it held
that “the absence of formality does not foreclose establishment of the collective
cultivation defense in a case involving a joint cultivation endeavor confined to two
qualified patients with no outside distribution.” (Ibid.) Under Orlosky, the absence of
business records is not in and of itself fatal to a collective-cultivation defense.
The Attorney General counters that “the trial court’s reliance on [the lack of]
evidence of business and financial records to determine whether there was sufficient
evidence for . . . [the] defense to go to the jury” was proper, citing People v. Solis (2013)
217 Cal.App.4th 51 and People v. Colvin, supra, 203 Cal.App.4th 1029. In Solis, the
defendants argued that substantial evidence did not support their convictions “because the
evidence compel[led] a finding” that the collective-cultivation defense applied. (Solis, at
pp. 56-57.) The Court of Appeal determined that “substantial evidence support[ed] the
trier of fact’s finding that [the defendants]’ evidence” failed to raise a possibility that the
entity at issue “was a cooperative or collective as contemplated by the MMP,” pointing to
the facts, among others, that the entity “was not registered as a nonprofit” and “the
financial records were not complete.” (Id. at p. 59.) While Solis reinforces the relevance
of business records in determining whether an entity operates on a nonprofit basis, the
holding that a jury could reasonably rely on the absence of such records to reject a
collective-cultivation defense does not amount to a holding that such records are required
to establish the defense. Similarly, Colvin suggests that a trial court may properly rely on
business records to find that an entity is a nonprofit, but it only discussed those records in
the course of explaining the basis of the lower court’s finding that the entity at issue was
“a ‘legitimate’ dispensary.” (Colvin, at pp. 1036, 1038.)
Ultimately, we need not decide whether to extend the holding of People v.
Orlosky, supra, 233 Cal.App.4th 257 to bigger, more organized entities like the one
Rossignol described. Unlike in Orlosky, business records were not presented here
because of a discovery violation, not because they did not exist. The point of the trial

-- 16 of 25 --

17
court’s ruling was that Rossignol (and any other witness Lavalle might present) could not
meaningfully testify about Rossignol’s entity if any mention of the records was
precluded. And this was true not only because the direct testimony would have holes in it
but also because the prosecution would be unable to conduct an effective cross-
examination. A defendant cannot, as Lavalle did here, fail to provide existing business
records—which are highly relevant to whether a collective-cultivation defense may
exist—and then expect to present the defense anyway. Accordingly, we conclude that
Lavalle did not sustain her burden of production at the section 402 hearing.
3. Lavalle’s claim involving her in camera offer of proof has no
merit.
Lavalle also makes the related claim that the trial court violated her constitutional
right to present a complete defense by refusing her request to make an in camera offer of
proof at the section 402 hearing. We disagree.
Initially, we question whether Lavalle preserved this claim. Her trial counsel
proposed an in camera offer of proof to “expedite” the section 402 hearing, but he
apparently did so only as an alternative to presenting Rossignol’s testimony and yielded
after the prosecutor objected. Nor did Lavalle’s counsel object when the trial court
indicated its belief that, in light of Donato’s and Rossignol’s testimony, an in camera
offer of proof was unnecessary. Lavalle’s counsel never renewed his request to make an
in camera offer of proof, much less gave any indication that Lavalle had evidence to offer
that the other witnesses could not provide. As a result, it is far from clear that the court’s
remark that it did not need an in camera offer of proof amounted to a “ruling” preventing
Lavalle from doing something she still wished to do.
But even assuming this claim was preserved, we reject it on its merits. Lavalle
relies on cases approving the use of defendants’ in camera offers of proof in various
contexts to obviate the Fifth Amendment concerns that might otherwise arise. (People v.
Collins (1986) 42 Cal.3d 378, 393-394 [defendant could make offer of proof in camera
on remand to establish whether erroneous ruling was prejudicial]; People v. Galambos,
supra, 104 Cal.App.4th at pp. 1156, 1159 [in camera offer of proof to establish whether

-- 17 of 25 --

18
various defenses applied]; People v. Superior Court (Barrett) (2000) 80 Cal.App.4th
1305, 1320-1321 [defendant could explain in in camera proceeding why requested
discovery relevant to defense]; Shleffar v. Superior Court (1986) 178 Cal.App.3d 937,
945 & fn. 8 [where right to speedy trial at issue, offer of proof of exculpatory evidence
witness would have given if available could be made in camera].) None of these cases
establishes that a trial court is required to permit a defendant to make an in camera offer
of proof. Yet Lavalle offers no reason the trial court erred other than that it denied her
request. In particular, she never contends that she had any information to present that
was different from what Donato and Rossignol had already testified to, much less that
would have helped to establish her entitlement to a collective-cultivation defense. As a
result, she has failed to convince us that the court erred or that any error was prejudicial.
C. Lavalle’s Claims of Instructional Error Are Meritless.
Finally, Lavalle claims the trial court erred by instructing the jury with a modified
version of CALCRIM No. 2361. She takes issue with four ways in which the instruction
given deviated from the standard instruction, each of which we discuss in turn and none
of which entitles her to relief.
We review a claim of instructional error de novo. (People v. Ghebretensae (2013)
222 Cal.App.4th 741, 759.) “ ‘ “[T]he correctness of jury instructions is to be determined
from the entire charge of the [trial] court, not from a consideration of parts of an
instruction or from a particular instruction.” ’ ” (People v. Musselwhite (1998) 17 Cal.4th
1216, 1248.) When an instruction is ambiguous, “ ‘ “the test is whether there is a
reasonable likelihood that the jury misunderstood and misapplied the instruction.” ’ ”
(People v. Moore (2011) 51 Cal.4th 1104, 1140.) “Jurors are presumed able to
understand and correlate instructions and are further presumed to have followed the
court’s instructions.” (People v. Sanchez (2001) 26 Cal.4th 834, 852.)
1. “May be lawful” versus “is lawful.”
Lavalle first takes issue with the fact the jury was instructed that “[t]he
transportation of marijuana may be lawful if . . . authorized by the [CUA]” (italics added)
instead of that it “is lawful if authorized by the [CUA].” (CALCRIM No. 2361, italics

-- 18 of 25 --

19
added.) She argues that this constituted a “misinstruct[ion] on the sole[] disputed
element” of the crime and therefore violated due process.
The Attorney General contends this claim was forfeited because Lavalle “failed to
object to [the challenged] portion of the instruction at trial.” We agree. Although
Lavalle’s proposed instruction used the word “is” instead of “may be,” her trial counsel
never objected to using the latter language. In any event, we would reject the claim even
if Lavalle had not forfeited it. She does not offer any reason the modified language was
erroneous or prejudicial except the conclusory statement that it amounted to a
“misinstruct[ion] on the sole[] disputed element.” Of course, any deviation from a
standard CALCRIM instruction is not automatically erroneous. While it is true that the
instruction given used permissive instead of mandatory language to describe the
lawfulness of CUA-authorized marijuana transportation, the instruction also made clear
that “the People ha[d] the burden of proving each element of the charge beyond a
reasonable doubt, including that the transportation of the marijuana in this case was
unlawful.” We fail to see how the jury could have concluded both that Lavalle’s
transportation of marijuana was authorized by the CUA—and thus, under her apparent
reading of the instruction, at least potentially lawful—and that the transportation was
unlawful beyond a reasonable doubt. Read in context with the rest of the instruction, the
use of “may be” instead of “is” was not erroneous.
2. “Recommended or approved” versus “recommended and
approved.”
Lavalle’s second claim of error relates to the instruction th0at “[t]he CUA allows a
person to transport marijuana for personal medical purposes and/or as the primary
caregiver of a patient with a medical need when a physician has recommended and
approved such use” (italics added) instead of “when a physician has recommended or
approved such use.” (CALCRIM No. 2361, italics added, brackets omitted.) Lavalle
argues that the language used “added another element to . . . the primary caregiver
defense.”

-- 19 of 25 --

20
The Attorney General contends that Lavalle forfeited this claim by failing to
object, and again we agree. Lavalle’s trial counsel never objected to the use of “and” in
the proposed instruction. And again, the claim would not entitle Lavalle to relief even if
it had been preserved. The bench notes to CALCRIM No. 2361 explain that the optional
“or approved” portion of the instruction should be given “[i]f the evidence shows that a
physician may have ‘approved’ but not ‘recommended’ the marijuana use.” The notes
cite People v. Jones, supra, 112 Cal.App.4th 341, which held that a defendant was
entitled to a defense under the CUA where he presented sufficient evidence that his
physician had approved his marijuana use even if the physician had not recommended it.
(Id. at pp. 346-347, 350-351.) Jones explained that the two terms had different meanings:
“The word ‘recommendation,’ as used in the [CUA], suggests the physician has raised
the issue of marijuana use and presented it to the patient as a treatment that would benefit
the patient’s health by providing relief from an illness. The word ‘approval,’ on the other
hand, suggests the patient has raised the issue of marijuana use, and the physician has
expressed a favorable opinion of marijuana use as a treatment for the patient. Thus, a
physician could approve of a patient’s suggested use of marijuana without ever
recommending its use.” (Id. at p. 347, italics in original.)
Even if the instruction was incorrect, any error was harmless. Donato specifically
testified that two of his physicians “recommend[ed]” that he use medical marijuana, and a
document introduced into evidence contained his physician’s statement that “the use of
medical marijuana is appropriate” for him. Thus, unlike in People v. Jones, supra,
112 Cal.App.4th 341, there was no dispute that the patient’s marijuana use was both
recommended and approved by a physician. As a result, we conclude that it is not
reasonably probable that the jury would have reached a different result had it been
instructed that a physician had to have “recommended or approved” Donato’s use of
medical marijuana and that any error was harmless beyond a reasonable doubt.
(Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818,
836.)

-- 20 of 25 --

21
3. Instruction on Lavalle’s burden of production.
Lavalle next challenges the portion of the instruction stating that she had “the
burden of producing evidence to show an affirmative defense to the charge of unlawful
transportation of marijuana [and t]his burden of proof requires sufficient evidence to
create a reasonable doubt in an objective person that the conduct was unlawful,” even
though CALCRIM No. 2361 contains no such language. She identifies two problems
with the added language. First, she argues that the reference to an “objective person”
established a higher standard for acquittal than creation of “a reasonable doubt.” Second,
she claims that no instruction on her burden to produce evidence should have been given
at all, relying on Justice Chin’s concurring opinion in People v. Mentch (2008) 45 Cal.4th
274, which suggested that because “the defendant’s burden [as to a compassionate-use
defense] is only to produce evidence under Evidence Code 110[,] . . . once the trial court
finds the defendant has presented sufficient evidence to warrant an instruction on the
defense, the defendant has fully satisfied this burden; accordingly, the court should not
instruct the jury on any defense burden.” (Id. at p. 293 (conc. opn. of Chin, J.).)
The Attorney General argues that Lavalle forfeited this claim by failing to object,
and we once again agree. Lavalle’s trial counsel never voiced any concerns about this
portion of the instruction. And, as with Lavalle’s previous instructional arguments, we
would reject the claim even if it had been preserved. Any confusion created by the
instruction was cured by other instructions. The jury was instructed with CALCRIM
No. 220, the general instruction on the People’s burden to prove a defendant guilty
beyond a reasonable doubt and the definition of that standard. And several other
instructions reiterated the People’s burden, including the challenged instruction itself.
Indeed, the sentence immediately following the one challenged stated that the People had
the burden to prove “each element of the charge beyond a reasonable doubt, including
that the transportation of the marijuana in this case was unlawful.” Thus, to the extent the
portion of the instruction about Lavalle’s burden might have confused the jury, the
immediately following portion about the People’s burden correctly established that the
prosecution bore the ultimate burden of proving, beyond a reasonable doubt, that the

-- 21 of 25 --

22
marijuana transportation was unlawful (and thus that the primary-caregiver defense did
not apply). Reading the instructions as a whole, we conclude there is no reasonable
likelihood that the jury misunderstood the challenged instructions to reduce the People’s
burden of proof or impose a burden on Lavalle that she did not have. (See People v.
Moore, supra, 51 Cal.4th at p. 1140.) There was no error.
4. Instruction on need for physician to determine and recommend
patient’s current medical needs.
Finally, the jury was instructed that “[i]f the defendant presents evidence as an
affirmative defense that he or she is a designated primary caregiver for a seriously ill
patient, the quantity of marijuana transported and the method, timing, and distance of the
transportation must be reasonably related to the patient’s current medical needs as
determined and recommended by the patient’s physician,” even though the italicized
portion of the sentence does not appear in CALCRIM No. 2361. (Italics added.) Lavalle
argues this phrase is erroneous because there is no requirement that a physician determine
and recommend the amount of marijuana that is appropriate for the patient’s needs. We
conclude that any error was harmless.
The Attorney General contends that this claim was forfeited by Lavalle’s failure to
object. This time we are not so certain. Although Lavalle’s trial counsel raised no
objection to the added phrase during earlier discussions of jury instructions, he did so
immediately before giving his closing argument, stating, “[T]he amount that a qualified
patient may have, as described in the law, . . . is an amount that’s reasonably related to
the current[] medicinal needs of the patient. And I don’t know of a particular case which
ties it directly to the physician himself. I may be mistaken on that, but I believe that the
instruction should read that it’s an amount that is reasonably related to the current
medicinal needs of the individual.” The ensuing colloquy among Lavalle’s counsel, the
prosecutor, and the trial court suggests, however, that Lavalle’s counsel eventually agreed
the additional language was appropriate. Ultimately, we need not determine whether
Lavalle forfeited this claim because any error in the instruction was harmless.

-- 22 of 25 --

23
We begin by recognizing that the instruction may have been incorrect. The
addition of the phrase “as determined and recommended by the patient’s physician” may
have been intended to incorporate section 11362.77, subdivision (b)’s allowance of
possession of more than eight ounces of marijuana per qualified patient as long as the
“qualified patient or primary caregiver has a doctor’s recommendation that this quantity
does not meet the qualified patient’s medical needs.”7 (§ 11362.77, subd. (b).) But our
state Supreme Court has held that section 11362.77 is an unconstitutional amendment of
an initiative statute to the extent it “burden[s] a defense that might otherwise be advanced
by persons protected by the CUA” by imposing a specific quantity limitation and
requiring a physician’s recommendation to exceed that limitation. (People v. Kelly,
supra, 47 Cal.4th at pp. 1017, 1024, 1049.) And there is authority for the proposition that
the CUA provides an implied defense to transportation of marijuana under section 11360
even though the CUA only explicitly refers to the crimes of possession and cultivation.
(§ 11362.5, subd. (d); People v. Trippet (1997) 56 Cal.App.4th 1532, 1550-1551; see
People v. Wright (2006) 40 Cal.4th 81, 90-92; but cf. People v. Young (2001)
92 Cal.App.4th 229, 236-237 [no implied defense to transportation under CUA].) While
it is true, as the Attorney General points out, that after Kelly a physician’s opinion
remains a relevant factor in determining whether a compassionate-use defense exists (see
Littlefield v. County of Humboldt (2013) 218 Cal.App.4th 243, 251-253), the instruction
here required that the patient’s medical needs be determined and recommended by a
physician. As a result, the added language incorrectly incorporated section 11362.77,
subdivision (b)’s requirements to the extent it burdened any defense Lavalle had under
the CUA.
Nonetheless, any such error was harmless. Negligible evidence was presented that
the eight pounds of marijuana was for Donato’s use. The jury would have had to infer
that the marijuana was for Donato’s use based on the mere existence of a primary-
7 At our request, the parties also submitted supplemental briefing on the issue whether the
additional phrase was proper in light of section 11362.77. (See Gov. Code, § 68081.)

-- 23 of 25 --

24
caregiver relationship between Donato and Lavalle. And it would have had to disregard
the strong evidence to the contrary, particularly Lavalle’s statement to Officer Scott that
she intended to sell the marijuana, her failure to ever suggest she was transporting the
marijuana as a primary caregiver, and the text messages suggesting she was dealing
marijuana in quantities similar to the amount found in her truck. Moreover, there was no
evidence to explain why, crediting Donato’s testimony about his medical needs, she had
what amounted to over five months’ worth of a supply for him. As a result, we conclude
it is not reasonably probable that the jury would have reached a different result if the
challenged language had been omitted from the instruction and that any error was
harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24;
People v. Watson, supra, 46 Cal.2d at p. 836.)
III.
DISPOSITION
The judgment is affirmed.

-- 24 of 25 --

25
_________________________
Humes, P.J.
We concur:
_________________________
Margulies, J.
_________________________
Dondero, J.

-- 25 of 25 --