P. v. Matteucci

Filed 4/28/17 P. v. Matteucci CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
JARED ANTHONY MATTEUCCI, et al.,
Defendants and Appellants.
F070491
(Super. Ct. Nos. VCF260283A and
VCF260283B)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Darryl B.
Ferguson, Judge.
Richard M. Doctoroff, under appointment by the Court of Appeal, for Defendant
and Appellant Jared Anthony Matteucci.
William I. Parks, under appointment by the Court of Appeal, for Defendant and
Appellant Dustin Amble Benson.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief
Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B.
Bernstein and Nicholas M. Fogg, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-

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2.
Jared Anthony Matteucci and Dustin Amble Benson were arrested after police
executing a search warrant on July 8, 2011 discovered they were growing numerous
marijuana plants at their Porterville home and at a second location in the foothills. On
November 2, 2011, Benson, who was out of custody on bail, and another individual
mailed a package containing marijuana to Ohio.
Both defendants were charged with the following crimes, which were alleged to
have occurred on July 8, 2011: cultivation of marijuana (Health & Saf. Code,1 former
§ 11358; count 2); manufacture of concentrated cannabis through chemical extraction
(§ 11379.6, subd. (a); count 4); and possession of concentrated cannabis (former § 11357,
subd. (a); count 5). Benson also was charged with the following drug-related crimes:
possession of marijuana for sale on July 8, 2011 (former § 11359; count 3); and
transportation of marijuana on November 2, 2011 (former § 11360, subd. (a); count 1).2
For count 1, the People further alleged Benson had transported marijuana while on bail
for another felony offense (Pen. Code, § 12022.1, subd. (b).)
The two were tried together before a jury.3 The jury rejected the defendants’
medical marijuana defenses and convicted them of all charges. Matteucci was placed on
probation for three years on condition, inter alia, that he serve 365 days in county jail. As
to Benson, the trial court imposed and suspended an 11-year, four-month state prison
sentence, and placed Benson on five years’ probation subject to the condition, inter alia,
that he serve 365 days in county jail. The defendants also were ordered to pay various
fees, fines, and assessments.
1 Undesignated statutory references are to the Health and Safety Code.
2 Benson was also charged with and convicted of two counts of child
endangerment (Pen. Code, § 273, subd. (a)).
3 Benson admitted the out-on-bail special allegation at the outset of the jury trial.

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In addressing defendants’ contentions on appeal, we conclude substantial evidence
supports defendants’ convictions of the manufacture of concentrated cannabis through
chemical extraction and Matteucci’s convictions of cultivation of marijuana and
possession of concentrated cannabis, and that the trial court did not commit prejudicial
instructional error. In addition, we reject Matteucci’s request that we reduce his sentence
pursuant to Proposition 47. We agree with the People, however, that Benson’s case must
be remanded to the trial court for it to either impose or strike the Penal Code
section 12022.1, subdivision (b) enhancement. In all other respects, we affirm.
FACTS
In 2011, Benson had a YouTube channel named “I Grow Medical Top Shelf.” On
that channel he posted videos depicting himself growing marijuana and offering it for
sale. The videos were posted between January and May 2011, but that was not
necessarily when the videos were filmed. Based on the resemblance of the persons in the
videos, the videos could have been filmed within two weeks or two months of being
posted.
One video, entitled “559 Style Trim City,” shows marijuana buds being cured on a
tray in what appears to be a “dryer” and a person holding a marijuana bud up to the
camera. Benson can be heard saying “[t]wo fifty a zip for all you medical patients that
are prop 215 legal, get at me, if you’re in the Visalia or Bakersfield area, you need some
quality medication[.]” Benson listed the available strains of marijuana. “Two fifty a zip”
is slang for $250 for an ounce of marijuana. Benson also posted videos using the name
“Bluntman.” In a video entitled “559 Bluntman Consulting Style,” Benson discusses
growing marijuana and speaks to Matteucci.
Investigators with the Tulare County Sheriff’s Office began viewing these videos
in May 2011. From the videos, detectives identified two locations for further
investigation: (1) a house on Slaughter Avenue in Porterville (the Slaughter property);
and (2) a house on Cedar Brook Trail in California Hot Springs, which is in the foothills

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east of Porterville (the Cedar Brook property). Search warrants were served on those two
locations on July 8, 2011.
The Slaughter Property
The Slaughter property is a corner lot on which sits a three bedroom house with an
attached garage. When the search warrant was served on the morning of July 8, 2011,
officers found Benson and his wife, along with their five- and eight-year-old children,
inside the house, where they were living. Matteucci also was inside the house; he had
been living there rent-free for about eight months. Neither Benson nor Matteucci were
employed.
In the backyard, officers found 131 live marijuana plants ranging from four to
seven feet tall. The plants were supported by PVC pipe to keep them from drooping. In
an enclosed patio, officers found two trays containing 351 small marijuana plants, which
were clones with established viable root systems. Hydroponic machines, which supplied
water and nutrients to help the plants grow, were under the starter trays. Ultraviolet
lights were suspended above each tray. A trim reaper, which is a mechanical means of
trimming marijuana buds, also was found. In the experience of the lead detective,
Sergeant Buddy Hirayama of the Tulare County Sheriff’s Department, such reapers are
uncommon in Tulare County; of the thousands of marijuana investigations he had
participated in, this was only the third time he had encountered a trimming machine – the
other two times, the machine was found on large cultivation sites.
Hirayama testified as an expert on how butane is used to manufacture concentrated
cannabis. The process begins by tightly packing a pipe with marijuana. Each end of the
pipe is then closed with screw-on caps – one cap has a single hole while the other has
multiple holes. A butane container is inserted into the cap with the single hole and the
butane is injected into the pipe. As the butane filters down, it freezes and liquefies the
contents as it extracts the trichomes from the marijuana. The trichomes contain
tetrahydrocannabinol (THC), the active ingredient in marijuana. The contents seep out of

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the other end of the pipe onto a glass dish. The butane evaporates leaving the
concentrated cannabis, otherwise known as honey oil or ear wax. The concentrated
cannabis is sticky and a razor blade can be used to scrape it off the dish.
On the top shelf of a two to four foot high cabinet in Matteucci’s bedroom,
officers found a Pyrex dish and a razor blade. There was a thin layered coat of dried
concentrated cannabis residue in the dish. Four pressurized canisters of butane were
found on the lower shelf; at least three of canisters were full. Hirayama opined the dish
was used to collect concentrated cannabis through butane extraction.
In an attached storage room behind the garage, detectives found a two to three foot
long pipe, which was capped on both ends. The cap on one end had one hole, which was
an injection port used to force butane into the tube, while the cap on the other end had six
holes. There was marijuana residue in the threads on one end of the pipe. It was
unknown how long the pipe had been out there or when it was last used.
Two digital scales were found in a kitchen cabinet. One scale had marijuana
particles on top of it. Scales typically indicate the sale of marijuana, as medical
marijuana users have little need to weigh it.
A dryer or humidifier was found in the attached garage; it appeared to be the same
one used in one of Benson’s videos. Officers found a vial on top of the dryer that
contained 0.13 grams of honey oil, or concentrated cannabis. Two vacuum sealing
machines were found in the home, one in the attached garage and the other in the kitchen.
The machines could be used to store marijuana by vacuum sealing, which was depicted in
one of Benson’s videos.
Detectives found apparently valid medical marijuana recommendations for Benson
and his mother, Cindy Benson. Benson’s recommendation allowed him to consume two
ounces per week and grow up to 90 mature female plants to produce that amount, while
Cindy’s allowed her to consume one plus ounces per week and grow up to 75 mature

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female plants to produce that amount. Another document found at the house declared
that Matteucci was Cindy’s primary caregiver.
Hirayama calculated that Cindy’s permitted use totaled 3.25 pounds of marijuana
per year, while Benson’s totaled 6.5 pounds per year, and the two together were
permitted a total of 165 mature plants. Officers, however, found a total of 482 plants at
the Slaughter property, none of which were mature. The 131 plants in the backyard were
pre-flowering and had not yet produced marijuana buds. Hirayama estimated they were
about two months from coming into maturity and would have produced at least one
pound of marijuana per plant. The total weight of the plants taken from the backyards of
the Slaughter and Cedar Brook properties was 142 pounds. There was a very small
amount of processed flower buds found at the Slaughter property, but it was still in the
“blunts portion of it.”
Hirayama interviewed Benson, who told him that the house was his, and the
marijuana belonged to him and his mother, who lived in Bakersfield. His mother,
however, had not been coming to his house because she was immobile due to recent back
surgery. Benson confirmed that all of the plants were female. Benson said he took care
of the plants. He grew marijuana himself, rather than buy it at a dispensary, because it
was cheaper. Benson expected to yield 1/4 to 1/2 pound per plant. Benson said this was
his second year growing marijuana.
In a YouTube video entitled “559 Style Ear Wax,” someone holds a Pyrex dish up
to the light, revealing a sticky residue on the dish, as Benson is heard saying “[g]ot that
ear wax you know what I mean.” Hirayama asked Benson about the concentrated
cannabis that was on the Pyrex dish found at his home and on the video. Benson told
Hirayama he bought the dish at a dispensary in Goshen, but police ultimately determined
this was not the case. Benson later told Hirayama he had manufactured or made honey
oil in the past, but did not state that his production was related to the Pyrex dish.

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Hirayama also interviewed Matteucci, who is Benson’s and Cindy’s cousin.
Matteucci said he was Cindy’s care provider and some of the marijuana plants at the
residence were for her, but they were not specifically designated as such. Matteucci said
he was taking care of the outside plants for Cindy. The last time Matteucci saw Cindy
was a month before the search, when she came to the Porterville area to visit. Matteucci
did not drive her there. Through a series of questions about the nature of care Matteucci
provided to Cindy, Matteucci admitted that the only care he provided was taking care of
her marijuana plants. He had not yet provided Cindy with any marijuana. Matteucci
denied that any of the plants were his or that he was involved in the manufacture of
concentrated cannabis or honey oil.
The Cedar Brook Property
A one-story house with an attic sat on the Cedar Brook property. Benson’s 17-
year-old cousin, Jourdan Patterson, who lived at the house, and two other males who
were visiting, were present inside the house when it was searched on the morning of
July 8, 2011. In the attic, police found 18 marijuana plants in pots, along with cultivation
equipment, a plastic bag containing processed marijuana, and stakes with handwritten
descriptions of different marijuana strains. A makeshift greenhouse in the backyard
contained 55 marijuana plants. There were 32 additional marijuana plants in pots in a
side yard. Benson told police he cared for the plants at the house.
Two medical marijuana recommendations were posted outside the greenhouse.
One was for Daniel Bracamontes, who was allowed to have 50 plants, and the other for
Miguel or Manuel Rodriquez, who was allowed to have 60 plants. At no point during the
police investigation did either of these individuals contact police to claim an interest in
the marijuana plants. Police did not find anything at the house that linked Matteucci to it.
However one of Benson’s YouTube videos, which shows Benson displaying a certain
marijuana strain, was filmed at the home’s loft and shows Matteucci entering the room.

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8.
Benson Mails Marijuana to Ohio
On November 2, 2011, Benson and another man shipped a six-pound package
from a FedEx store in Visalia to Ohio. They paid in cash and selected expedited delivery,
which are common for persons shipping marijuana. While the other man did most of the
talking, the clerk thought Benson “was the one who made the choices.” The clerk
flagged the package as suspicious. FedEx called a special agent from the Department of
Justice who found a little over three pounds of marijuana inside.
Benson later denied to police that he had ever shipped marijuana out of state. He
told police he gave someone he knew only as “P” a ride to the FedEx store, and he knew
only one person in Ohio, who went by the YouTube user name “Clock and Cash.” In at
least three YouTube videos, Benson referenced Ohio, “P” or “Clock and Cash.”
A Later Search Uncovers More Marijuana
On November 15, 2011, officers again searched the Slaughter and Cedar Brook
properties. Benson, Matteucci and Patterson were at the Slaughter property. Officers
found a suitcase containing marijuana weighing slightly less than a pound on a shelf in
the closet of Benson’s bedroom. Marijuana and shake marijuana were also found on top
of the dresser and in a dresser drawer in Benson’s bedroom. In the garage, officers found
black trash bags that contained shake marijuana and items relating to the production of
concentrated cannabis, namely agricultural strain bags that can be used to make bubble
hash using the ice water method, which involves combining ice, water, and marijuana or
shake, and straining it several times to extract THC. Some of Benson’s YouTube videos
show him making hash using that method. Officers also found a vial containing
approximately a gram of concentrated hash.
At the Cedar Brook property, officers found 269 marijuana plants, seven trash
bags containing marijuana clippings, and a medical marijuana recommendation for
Benson. Benson told officers he had no involvement with those plants.

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9.
Defense Testimony
At trial, Benson testified he believed he was in a collective with his friends and
family, although the collective did not have a “set” membership. The members of the
collective on July 8, 2011 were Danny Bracamontes, Daniel Rodriguez, Cindy Benson,
Benson’s uncle Chris Patterson, Lorenzo Avila, Matteucci, and Benson. Benson said his
mother got a primary caregiver designation for Matteucci because Benson knew that only
qualified patients and primary caregivers were able to participate in a collective.
The collective was not formally established as a non-profit and it was not
incorporated or registered with the state as a cooperative. The members of the collective
did not have to sign an agreement to join; Benson believed a verbal agreement was
legally acceptable. The only membership records were copies of the members’ current
medical recommendations, which Benson checked against an online database before he
provided marijuana to a member. Benson denied earning a profit and said he was
reimbursed only for his expenses, although he did not keep close track of those expenses
and did not provide an accounting or statement of expenses to other members. Benson
said it was typical for members to give him monetary donations, although some people
would donate equipment or time. Benson used the money to purchase clones, soil,
nutrients, and soil water, as well as to pay his rent and buy his food.
Benson said the YouTube videos were an attempt to teach others how to grow
their own medical marijuana. He began uploading videos to YouTube in 2007, and had
uploaded 230 videos; about two-thirds of them dealt with growing medical marijuana.
Benson explained when he said “250 a zip” in one video, he was referring to medical
marijuana patients who were out of medicine and explained that if they needed to find
medicine “you can get a hold of me and pretty much it is $250 donation for an ounce of
marijuana.” Benson said no one took him up on his offer. Benson denied this was a
price tag for the marijuana and said it was the cost of reimbursing him for his cost of
production.

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Benson admitted making concentrated cannabis using the olive oil, cold water, and
vegetable glycerin extraction methods, as he preferred to consume marijuana through
edibles. He also smoked marijuana – in July 2011 he smoked a half-gram to a gram once
a day. He was also making edibles during that time. Benson admitted the pipe found in
his yard with holes on either end was used for making concentrated cannabis, but claimed
it was made using “nitrogen, CO2, or if you feel the need to make it with butane some
patients choose to do it with butane.” Benson denied he ever personally used butane with
the pipe, although he “had watched people using butane.” Benson said the butane found
at the Slaughter property was not the correct type of butane for extraction; instead,
medical grade butane should be used, which requires additional items that were not at his
property.
Benson claimed the concentrated cannabis that was in the jar in the garage was
made by nitrogen extraction; he said someone else purchased it and brought it to the
property. He did not know how the concentrated cannabis that was in the Pyrex dish in
Matteucci’s bedroom had been made; he said the dish was brought to the house. Benson
admitted he told Hirayama that he purchased the Pyrex dish from the dispensary with the
honey oil in it, but denied that he admitted to Hirayama that he used the extraction pipe
and butane to manufacture honey oil himself. Instead, he said he told Hirayama he was
present during the manufacture of honey oil. Benson testified that he had made honey oil
with butane before 2009, but never by himself. He claimed it was part of a “learning
experience” and that he had not made honey oil that way since 2009.
Benson denied that he owned the package of marijuana shipped from the FedEx
store and said he merely gave his neighbor, P, a ride to the store. Matteucci did not
testify at trial.
Other defense witnesses testified regarding collective cultivation. Daniel
Bracamontes and David Jones testified they had medical marijuana recommendations and
collectively grew marijuana with Benson at the Cedar Brook property. Bracamontes

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testified the members of the collective were himself, Michael Rodriguez and Benson.
Bracamontes did not contribute any money to the collective, just his labor and time; the
materials and plants were provided by someone else. Jones testified that in November
2011, he was in a collective with his son and Benson, and they were growing clones that
they planned to divide equally once the clones started rooting.
Dr. Daniel Brubaker testified that he recommended medical marijuana for Benson
and his mother, Cindy. He also witnessed Matteucci’s designation as Cindy’s primary
caregiver, which was based on Cindy’s severe anxiety and back problems, and because
she was considered disabled. Cindy testified that she had grown medical marijuana in the
past, but a back surgery prevented her from growing her own marijuana. Matteucci, who
is her cousin’s son, grew marijuana for her at the Slaughter property, where he lived with
Benson. Matteucci drove from Porterville to Cindy’s home in Bakersfield at least once a
week to help her with “doctor’s appointments, groceries, anything I needed.” Cindy
married in July 2011 and lived with her spouse in Bakersfield. Her spouse was able-
bodied, but he worked all the time and did not help her. When Benson and Matteucci
were arrested in July 2011, Cindy had been in New Jersey for over a month visiting her
younger son and while she intended to return to California, she did not know at the time
when she would do so.
Rebuttal
Hirayama testified that in his training and experience, the extraction pipe that was
found was used for the butane extraction method of manufacturing honey oil. He had
never heard of that kind of pipe being used with nitrogen or CO2.
Hirayama spoke with Cindy by telephone on July 8, 2011. Cindy told him this
was the first year marijuana had been grown for her and she was completely unfamiliar
with the process of cultivating marijuana. Cindy had not received any marijuana from
either Benson or Matteucci. Cindy told Hirayama she was in New Jersey; she had been

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there a little over a month and did not have a return date. She did not know how she
intended to get the marijuana that was being cultivated for her.
DISCUSSION
I. Overview of California’s Medical Marijuana Laws
In California, marijuana is classified as a Schedule I controlled substance.
(§ 11054, subd. (d)(13); County of San Diego v. San Diego NORML (2008)
165 Cal.App.4th 798, 809.) The state’s statutes “specify that, except as authorized or
provided by law, it is a crime to possess marijuana (§ 11357), to cultivate, harvest, dry, or
process it (§ 11358), to possess it for sale (§ 11359), to transport, import, sell, administer,
or furnish it (§ 11360), or to give it away (ibid).” (People v. Dowl (2013) 57 Cal.4th
1079, 1085 (Dowl).)
In 1996, California voters approved Proposition 215, which was codified in
section 11362.5 and is known as the Compassionate Use Act (CUA). Section 11362.5,
subdivision (d) provides: “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.”
By this and related provisions, the CUA created a “limited defense” for patients
and patients’ primary caregivers to the crimes of simple possession or cultivation of
marijuana. (Kirby v. County of Fresno (2015) 242 Cal.App.4th 940, 952 (Kirby).) The
narrowly drafted provision applied “solely to qualified patients and their primary
caregivers who possess or cultivate marijuana for the patient’s personal use.” (People v.
London (2014) 228 Cal.App.4th 544, 551 (London), italics omitted.) It neither altered the
statutory provisions barring transportation, possession for sale, and sale of marijuana
(People v. Urziceanu (2005) 132 Cal.App.4th 747, 773 (Urziceanu)) nor provided for the
collective cultivation and distribution of marijuana (id. at p. 782). To invoke the defense,

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a defendant need only introduce at trial evidence that raises a reasonable doubt as to the
facts underlying the CUA defense. (Dowl, supra, 57 Cal.4th at p. 1086; People v. Mower
(2002) 28 Cal.4th 457, 464, 481.)
“The CUA does not specify an amount of marijuana that a patient may possess or
cultivate, but simply imposes the requirement that the marijuana must be for the patient’s
‘personal medical purposes.’ [Citations.] This medical purposes requirement has been
judicially construed to mean ‘ “the quantity possessed by the patient . . . , and the form
and manner in which it is possessed, should be reasonably related to the patient’s current
medical needs.” ’ ” (People v. Orlosky (2015) 233 Cal.App.4th 257, 267 (Orlosky),
italics omitted; see People v. Kelly (2010) 47 Cal.4th 1008, 1013 (Kelly).)
“Despite — or, perhaps, because of — this judicial construction of the CUA,
questions persisted for both qualified medical marijuana patients and for law enforcement
officers relating to enforcement of and arrest for possession, cultivation, and other related
marijuana offenses. In 2003, the Legislature found that ‘reports from across the state
have revealed problems and uncertainties in the [CUA] that have impeded the ability of
law enforcement officers to enforce its provisions as the voters intended and, therefore,
have prevented qualified patients and designated primary caregivers from obtaining the
protections afforded by the act.’ ” (Kelly, supra, 47 Cal.4th at pp. 1013-1014.)
In response, the Legislature enacted the Medical Marijuana Program (MMP;
§ 11362.7 et seq.). (Dowl, supra, 57 Cal.4th at p. 1086; Kelly, supra, 47 Cal.4th at
p. 1014.) While the MMP did not literally amend the CUA, it did add 18 new code
sections that address the CUA’s general subject matter. (Kelly, supra, 47 Cal.4th at
p. 1014.) Under the MMP, “those who provide documentation from an ‘attending
physician’ that they have ‘been diagnosed with [certain] serious medical condition[s] and
that the medical use of marijuana is appropriate’ (§ 11362.715, subd. (a)(2)) may obtain
an ‘identification card that identifies’ them as ‘a person authorized to engage in the
medical use of marijuana’ (§ 11362.71, subd. (d)(3)).” (Dowl, supra, at p. 1086.) Such

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persons or their designated primary caregivers generally are exempt from “arrest for
possession, transportation, delivery, or cultivation of medical marijuana in an amount
established pursuant to this article . . . ”. (§ 11362.71, subd. (e).)
“The ‘amount established pursuant to this article’ is addressed in
section 11362.77 . . . [which] does two things: (1) it establishes quantity limitations, and
(2) it sets forth a ‘safe harbor’ by authorizing possession of medical marijuana within
those specific limits.” (Kelly, supra, 47 Cal.4th at p. 1015, fn. omitted.) As our Supreme
Court has explained: “Subdivision (a) of section 11362.77 provides that a ‘qualified
patient’ or primary caregiver may ‘possess no more than eight ounces of dried marijuana’
and may, ‘[i]n addition . . . maintain no more than six mature or 12 immature marijuana
plants.’ (Id., subd. (a), italics added.) The next two subdivisions of the same section
provide qualified exceptions for even greater amounts. Subdivision (b) specifies that a
patent may ‘possess an amount of marijuana consistent with the patient’s needs,’ on
condition that the patient ‘has a doctor’s recommendation’ stating that the quantity set out
in subdivision (a) is insufficient for the patient’s medical needs. Subdivision (c) specifies
that cities or counties may retain or enact guidelines allowing greater quantities than
those set out in subdivision (a). These aspects of section 11362.77 evidently were
designed to provide an objective, bright-line standard in lieu of the subjective, highly
individualized reasonable-amount standard set forth in the CUA . . . thereby providing
law enforcement officers with uniform standards, and providing patients who meet those
standards (and their primary caregivers) with predictability.” (Kelly, supra, 47 Cal.4th at
p. 1016, fns. omitted.)
“The MMP’s safe harbor provision, subdivision (f) of section 11362.77, authorizes
possession of certain amounts of medical marijuana.” (Kelly, supra, 47 Cal.4th at
p. 1016.) That subdivision provides: “A qualified patient or a person holding a valid
identification card, or the designated primary caregiver of that qualified patient or person,
may possess amounts of marijuana consistent with this article.” (§ 11362.77, subd. (f).)

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By its terms, the safe harbor provision applies both to those who hold MMP identification
cards and to qualified patients or their primary caregivers, who are entitled to CUA’s
protections but have not obtained an MMP identification card that may provide protection
from arrest.4 (Kelly, supra, 47 Cal.4th at pp. 1016-1017.)
“The MMP further specifies that a person who (1) ‘transports or processes
marijuana for his or her own personal medical use’ (§ 11362.765, subd. (b)(1)) and (2))
either has an identification card or does not have one but is ‘entitled to’ the CUA’s
‘protections’ (see § 11362.7, subd. (f) [defining ‘qualified patient’]), ‘shall not be subject,
on that sole basis, to criminal liability under Section 11357 [possession of marijuana],
11358 [cultivation of marijuana], 11359 [possession for sale], 11360 [transportation],
11366 [maintaining a place for the sale, giving away, or use of marijuana], 11366.5
[making available premises for the manufacture, storage or distribution of controlled
substances], or 11570 [abatement of nuisance created by premises used for manufacture,
storage or distribution of controlled substance].’ (§ 11362.765, subd. (a).)” (Dowl,
supra, 57 Cal.4th at p. 1086.)
In addition, in order to effectuate the goal of enhancing the access of patients and
caregivers to medical marijuana through collective or cooperative cultivation projects, the
MMP includes a provision “stating that ‘[q]ualified patients . . . [and the designated
primary caregivers of qualified patients . . .] who associate . . . in order collectively or
cooperatively to cultivate marijuana for medical purposes’ are exempt from criminal
4 The MMP defines a “ ‘qualified patient’ ” as “a person who is entitled to the
protections of Section 11362.5, but who does not have an identification card issued
pursuant to this article.” (§ 11362.7, subd. (f).) As pertinent here, a “ ‘primary
caregiver’ ” is defined as “the individual, designated by a qualified patient . . . who has
consistently assumed responsibility for the housing, health, or safety of that patient . . .”.
(§ 11362.7, subd. (d).)

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culpability.” (Orlosky, supra, 233 Cal.App.4th at p. 267, fn. & italics omitted; see
§ 11362.775.5)
As is apparent from the foregoing, the MMP expanded the affirmative defense to
possession and cultivation of marijuana for personal medical purposes available under the
CUA. (See § 11362.5, subd. (d); People v. Wright (2006) 40 Cal.4th 81, 84; Kirby,
supra, 242 Cal.App.4th at p. 953; Urziceanu, supra, 132 Cal.App.4th at p. 786.) It made
clear, however, that it does not “authorize any individual or group to cultivate or
distribute marijuana for profit.” (§ 11362.765, subd. (a); see London, supra,
228 Cal.App.4th at pp. 553-554.) To raise the collective cultivation defense, a defendant
need only raise a reasonable doubt about the existence of the defense; once this burden is
met, the trial court must provide the instruction and inform the jury the prosecution has
the burden to disprove the defense beyond a reasonable doubt. (Orlosky, supra,
233 Cal.App.4th at p. 269.)
II. Sufficiency of the Evidence
Benson and Matteucci both contend the evidence was insufficient to sustain their
convictions on count 4, the manufacture of concentrated cannabis through chemical
extraction (§ 11379.6).6 Matteucci also contends there is insufficient evidence to support
his convictions on counts 2, cultivation of marijuana (former § 11358), and 5, possession
of concentrated cannabis (former § 11357, subd. (a)), because the amounts of marijuana
5 Section 11362.775, subdivision (a) states: “[Q]ualified patients, persons with
valid identification cards, and the designated primary caregivers of qualified patients and
persons with identification cards, who associate within the State of California in order
collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely
on the basis of that fact be subject to state criminal sanctions under Section 11357,
11358, 11359, 11360, 11366, 11366.5, or 11570.”
6 Neither the CUA nor the MMP provide a defense to a charge under
section 11379.6, subdivision (a), of directly or indirectly manufacturing a controlled
substance by chemical extraction. (§§ 11362.5, subd. (d), 11362.765, subd. (a),
11362.775; People v. Bergen (2008) 166 Cal.App.4th 161, 172, fn. 6 (Bergen).)

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and concentrated cannabis linked to him were well within the amounts he could legally
possess or cultivate as Cindy’s primary caregiver.
The applicable legal principles are settled. The test of sufficiency of the evidence
is whether, reviewing the whole record in the light most favorable to the judgment below,
substantial evidence is disclosed such that a reasonable trier of fact could find the
essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980)
26 Cal.3d 557, 578 (Johnson); accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.)
Substantial evidence is that evidence which is “reasonable, credible, and of solid value.”
(Johnson, supra, at p. 578.) An appellate court must “presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the
evidence.” (People v. Reilly (1970) 3 Cal.3d 421, 425.) An appellate court must not
reweigh the evidence (People v. Culver (1973) 10 Cal.3d 542, 548), reappraise the
credibility of the witnesses, or resolve factual conflicts, as these are functions reserved
for the trier of fact (In re Frederick G. (1979) 96 Cal.App.3d 353, 367). Before a
judgment can be reversed on this ground, “it must clearly appear that upon no hypothesis
whatever is there sufficient substantial evidence to support [the verdict].” (People v.
Redmond (1969) 71 Cal.2d 745, 755.) Thus, “[w]here the circumstances support the trier
of fact’s finding of guilt, an appellate court cannot reverse merely because it believes the
evidence is reasonably reconciled with the defendant’s innocence.” (People v. Meza
(1995) 38 Cal.App.4th 1741, 1747.) This standard of review is applicable regardless of
whether the prosecution relies primarily on direct or on circumstantial evidence.
(People v. Lenart (2004) 32 Cal.4th 1107, 1125.)
A. The Manufacture of Concentrated Cannabis
To prove a violation of section 11379.6, subdivision (a), the People must show the
defendant (1) directly or indirectly manufactured a controlled substance using chemical
extraction, and (2) knew of the substance’s nature or character as a controlled substance.
(§ 11379.6, subd. (a); CALCRIM No. 2330; People v. Coria (1999) 21 Cal.4th 868, 874,

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880-881.) The production of concentrated cannabis, known as honey oil or ear wax,
through butane oil extraction qualifies as the manufacture of a controlled substance by
“chemical extraction” within the meaning of section 11379.6, subdivision (a). (Bergen,
supra, 166 Cal.App.4th at pp. 164, 169, 172-173.) The jury’s instruction in this case was
consistent with these elements.
Here, there was sufficient evidence that marijuana in the form of concentrated
cannabis had been manufactured at the Slaughter property using the butane extraction
method. The tools commonly used in the process were found on the property, namely an
extraction pipe capped on both ends, a Pyrex dish, and a razor blade. Marijuana residue
on the pipe and concentrated cannabis residue on the dish indicated they had been used to
make concentrated cannabis. The raw materials required for the process also were found
on the property, namely pressurized canisters of butane and the marijuana growing in the
backyard. The end product, concentrated cannabis, was found in a vial in the garage.
Taken together, this evidence was sufficient to establish the manufacturing process had
occurred. (See, e.g., People v. Combs (1985) 165 Cal.App.3d 422, 426-427 (Combs) [the
presence at the defendant’s residence of nearly all of the necessary equipment and
materials to manufacture phencyclidine, a violation of section 11379.5, along with a
quantity of the substance, “establishes beyond question that the manufacturing process
had taken place”].)
The evidence also established both Benson’s and Matteucci’s involvement in
manufacturing concentrated cannabis. As to Matteucci, it was undisputed that he was
living in the bedroom where the Pyrex dish, which had a thin layer of concentrated
cannabis on it, the razor blade, and the butane canisters were found. Matteucci
apparently had access to the other areas of the premises, which would include the storage
room where the extraction pipe was located and the garage where the vial with the
concentrated cannabis was found. Moreover, Matteucci admitted he tended the
marijuana plants that were growing in the backyard. “ ‘The inference of dominion and

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control is easily made when the contraband is discovered in a place over which the
defendant has general dominion and control: his residence . . . ’ ” (People v. Small
(1988) 205 Cal.App.3d 319, 326.) The evidence, considered cumulatively, was sufficient
to prove that Matteucci had access to all of the items necessary to produce concentrated
cannabis by the butane extraction method, and that he participated in its production.
The evidence likewise was sufficient to connect Benson to concentrated cannabis
production. Benson and his family were living at the property, and he certainly had
control of the entire premises, including the tools and materials needed to produce
concentrated cannabis by butane extraction, as well as the vial in which concentrated
cannabis was found. Moreover, in his “559 Style Ear Wax” video, Benson displays “ear
wax,” or concentrated cannabis, on a Pyrex dish. These facts sufficiently prove Benson
was knowingly involved in concentrated cannabis production by butane extraction.
Benson asserts that courts have found sufficient evidence to support a conviction
for violating section 11379.6 only where there was “some evidence” of “an ongoing
manufacturing process that had commenced with an initial step.” While he concedes
there was evidence suggesting concentrated cannabis may have been manufactured at the
Slaughter property sometime in the past, he claims there was no evidence he “was
currently engaged in any stage – from inception to completion – of unlawfully
manufacturing a controlled substance.”7 Benson asserts that without such evidence, his
conviction cannot stand.
We do not agree with Benson’s suggestion that the statute cannot apply unless
there is evidence of recent manufacturing activity. Section 11379.6 is violated if a person
“manufactures” a controlled substance by chemical extraction. The statute embraces
“every stage of the process for manufacturing . . . from inception through completion.”
7 Matteucci joins in Benson’s argument to the extent it supports his own claim of
insufficient evidence to support his conviction for manufacturing concentrated cannabis.

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(People v. Stone (1999) 75 Cal.App.4th 707, 715 (Stone); see also Combs, supra,
165 Cal.App.3d at p. 427 [the presence of nearly all the equipment and materials needed
to manufacture a controlled substance, along with a quantity of the actual substance,
“establishes beyond question that the manufacturing process had taken place”].)
Consistent with the statute, the jury here was instructed that to find defendants guilty of
this crime, the People must prove a defendant “manufactured a controlled substance,
specifically marijuana[,] using chemical extraction or independent chemical synthesis.”
As we have explained, there is sufficient evidence to show that Benson and Matteucci
manufactured concentrated cannabis by butane extraction.
Although Benson recognizes that section 11379.6 applies when the manufacturing
process has been completed, he nevertheless contends there is nothing in the statute or
any published opinion interpreting it that suggests the statute may be applied where the
evidence suggests only that marijuana may have been manufactured “at some time in the
unknown past.” The statute, however, does not state that the manufacturing must have
occurred within a particular time and the cases Benson cites do not purport to establish
such a limitation. (People v. Luna (2009) 170 Cal.App.4th 535, 542; Bergen, supra,
166 Cal.App.4th 161, 169, 171; People v. Pierson (2001) 86 Cal.App.4th 983, 990;
Stone, supra, 75 Cal.App.4th at pp. 713-714; People v. Heath (1998) 66 Cal.App.4th 697,
705; People v. Lancellotti (1993) 19 Cal.App.4th 809, 812-813; People v. Jackson (1990)
218 Cal.App.3d 1493, 1503-1504; Combs, supra, 165 Cal.App.3d at p. 427.)
In short, sufficient evidence supported defendants’ convictions for violating
section 11379.6 because all of the equipment and raw materials necessary to manufacture
concentrated cannabis, as well as some concentrated cannabis itself, were found in their
home.

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B. The Primary Caregiver Defense
Matteucci contends his status as Cindy’s primary caregiver rendered the evidence
insufficient to convict him of either marijuana cultivation (former § 11358) or possession
of concentrated cannabis (former § 11357, subd. (a)).
The CUA and MMP both create defenses against marijuana cultivation and
possession charges for primary caregivers. (§§ 11362.5, subd. (d), 11362.765, subds. (a)
& (b)(2), 11362.775.)8 The general description of a primary caregiver, found in both the
CUA and MMP, has two parts: (1) a medical marijuana patient has designated an
individual as his or her primary caregiver (the designee clause); and (2) the individual
“ ‘has consistently assumed responsibility for the housing, health, or safety’ ” of the
patient (the responsibility clause). (People v. Mentch (2008) 45 Cal.4th 274, 283
(Mentch); People v. Hochanadel (2009) 176 Cal.App.4th 997, 1015-1016.) Our Supreme
Court has determined that to satisfy the responsibility clause, “a defendant asserting
primary caregiver status must prove, at a minimum, that he or she (1) consistently
provided caregiving, (2) independent of any assistance in taking medical marijuana, (3) at
or before the time he or she assumed responsibility for assisting with medical marijuana.”
(Mentch, supra, at p. 283.) The defense does not apply where the provision of marijuana
is itself the substance of the relationship. (Id. at p. 287.)
Here, there was sufficient evidence to establish that Matteucci was not Cindy’s
primary caregiver within the meaning of the statutes. While the evidence established the
first prong of the defense, i.e. that Cindy, who had a recommendation for medical
marijuana, had designated Matteucci as her primary caregiver, the record is bereft of
8 The CUA and MMP contain the same definition of primary caregivers, namely
an individual designated by a medical marijuana patient “who has consistently assumed
responsibility for the housing, health, or safety” of that patient. (§§ 11362.5, subd. (e),
11362.7, subd. (d).) The jury was instructed with both the CUA defense and the MMP
defense, and given the statutory definition of “primary caregiver.”

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evidence establishing the second prong, i.e. that Matteucci “assumed responsibility for
[Cindy’s] housing, health or safety.” Matteucci told Hirayama after the July 2011 search
that the only thing he did for Cindy was to care for her marijuana plants, and the last time
he had seen Cindy was a month prior, when she came to the Porterville area. Cindy’s
testimony that Matteucci drove from Porterville to Bakersfield at least once a week to
help her with doctor’s appointments, medication, groceries, and other things, even if
believed, does not establish that Matteucci provided her with consistent caregiving or
assumed responsibility for her housing, health or safety. Without such evidence, Cindy’s
designation of Matteucci as her primary caregiver has no legal effect and does not
provide a defense to Matteucci.
Matteucci claims Mentch was wrongly decided, as it narrowly restricts the term
“primary caregiver” by requiring a caregiver to do more than grow and provide marijuana
to a medical marijuana patient. He asserts the Supreme Court’s interpretation of
section 11362.5, subdivision (e) violates his and Cindy’s constitutional rights to equal
protection of the law, and he intends to request the Supreme Court to reconsider Mentch.
As Matteucci recognizes, we are obligated to follow the decision in Mentch, so we must
reject his challenge. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.)
In sum, based on the evidence, a reasonable juror could find beyond a reasonable
doubt that Matteucci was not Cindy’s primary caregiver, and therefore convict him of
cultivation of marijuana and possession of concentrated cannabis.
III. Instructional Errors
Defendants contend the trial court committed error in its instructions on their
collective cultivation defense and in defining “marijuana.” We consider each alleged
error in turn, and conclude defendants are not entitled to reversal.
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

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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 (Moore).) “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.)
A. The Collective Cultivation Defense
Defendants argue the trial court’s jury instruction on their collective cultivation
defense erroneously placed the burden on them. Defendants based their defense on
section 11362.775, which provides that qualified patients and their primary caregivers
who associate within the state “in order collectively or cooperatively to cultivate
marijuana for medical purposes, shall not solely on the basis of that fact be subject to
criminal sanctions under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or
11570.” At trial, defendants raised section 11362.775’s collective cultivation defense
(MMP defense) and presented evidence supporting it.
Both the defense and the prosecution proposed special instructions on the defense.
Benson’s attorney objected to the prosecution’s instruction, arguing it improperly shifted
the burden of proof to him.9 The trial court ultimately adopted the prosecution’s
9 Matteucci’s attorney never objected to the instruction or joined in Benson’s
objection. Matteucci nevertheless asserts that he may challenge the instruction on appeal,
along with Benson, because he has not forfeited the issue and if he has, his trial attorney
was ineffective for failing to object. We agree with Matteucci that he has not forfeited
the issue. We review any claim of instructional error that affects a defendant’s
substantial rights whether or not there was an objection at trial. (See Pen. Code, § 1259
[“[t]he appellate court may also review any instruction given . . . even though no
objection was made thereto in the lower court, if the substantial rights of the defendant
were affected thereby”]; People v. Myles (2012) 53 Cal.4th 1181, 1219, fn. 12 [forfeiture
rule does not apply when “the court gives an instruction that incorrectly states the law”];
People v. Denman (2013) 218 Cal.App.4th 800, 812 [“[w]hen the trial court gives an

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instruction, after modifying the burden of proof language, and instructed the jury as
follows:
“Under the Medical Marijuana Program Act (MMPA), qualified patients and the
designated primary caregivers of qualified patients, who associate within the State of
California in order collectively or cooperatively to cultivate marijuana for medical
purposes, shall not solely on the basis of that fact be subject to state criminal sanctions
under Section 11357, 11358, 11359, or 11360.
“This defense can apply to the crimes of Cultivation, Transportation, and
Possession for Sale of Marijuana, and Possession of Concentrated Cannabis. It requires
that a defendant show any evidence that members of the collective or cooperative:
“(1) are qualified patients for whom marijuana has been approved or
recommended by a physician for medicinal purposes;
“(2) collectively or cooperatively associate to cultivate marijuana; and
“(3) are not engaged in a profit-making enterprise.
“The collective or cooperative association required by the act need not include
active participation by all members in the cultivation process but may be limited to
financial support by way of marijuana purchases from the organization.
“The MMPA does not authorize any individual or group to cultivate or distribute
marijuana for profit. In considering whether a collective or cooperative is nonprofit, you
may consider the testimony of the operators of the enterprise, its formal establishment as
a nonprofit organization, the presence or absence of any financial records, the presence or
incorrect or incomplete instruction that allegedly affects the substantial rights of a
defendant, it is reviewable even if no objection was raised in the trial court”].) We
cannot determine whether Matteucci’s substantial rights were affected without deciding if
the instruction given was erroneous and, if so, whether the error was prejudicial.
Therefore, we must review the merits of Matteucci’s challenge to the trial court’s
instruction.

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absence of processes by which the enterprise is accountable to its members, the size of
the enterprise’s membership, and the volume of business it conducts.
“Any monetary reimbursement that members provide to the collective or
cooperative should only be an amount necessary to cover overhead costs and operating
expenses.
“The People have the burden of proving beyond a reasonable doubt that the
defendants’ conduct was not authorized under the Medical Marijuana Program Act
(MMPA). If the People have not met this burden, you must find the defendants not
guilty.”10 (Italics added.)
On appeal, defendants contend the jury should not have been instructed on their
burden to “show any evidence,” relying on Justice Chin’s concurring opinion in Mentch,
supra, 45 Cal.4th 274. There, Justice Chin suggested that because “the defendant’s
burden [as to a compassionate use defense] is only to produce evidence under Evidence
Code 110, and that 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.).) Defendants argue the instruction here, by stating that
they were required to “show any evidence[,]” shifted the burden of proof to them and
permitted the prosecutor to obtain a conviction based on a standard less than a reasonable
doubt.
We agree with the People that any confusion created by the instruction was cured
by other instructions. The jury was instructed with CALCRIM No. 220, the general
10 At the time of trial, CALCRIM did not include a pattern instruction on the
MMP’s collective cultivation defense. After trial, CALCRIM No. 3413 was adopted,
which lists the elements of the defense, and includes instruction on the People’s burden to
prove beyond a reasonable doubt that the defendant was not authorized to cultivate
marijuana for medical purposes. The instruction does not state that the defendant is
required to make any showing in order to invoke the defense.

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instruction on the People’s burden to prove a defendant guilty beyond a reasonable doubt
and the definition of that standard. Several other instructions reiterated the People’s
burden, including the challenged instruction itself. That instruction did not impose a
burden of proof on defendants, only a burden of production, as the instruction stated the
defendants were required to “show any evidence.” Moreover, the instruction concluded
with the statement that the People had “the burden of proving beyond a reasonable doubt”
the defendants’ conduct was not authorized under the MMP, and if the People did not
meet this burden, the jury “must find the defendants not guilty.” Thus, even if the portion
of the instruction about what the defendants were required to show might have confused
the jury, the portion about the People’s burden correctly established the prosecution bore
the ultimate burden of proving, beyond a reasonable doubt, that the defendants’ conduct
was unlawful, and therefore the collective cultivation instruction did not apply. Reading
the instructions as a whole, we conclude there is no reasonable likelihood the jury
misunderstood the challenged instruction to reduce the People’s burden of proof or
impose a burden on defendants that they did not have. (Moore, supra, 51 Cal.4th at
p. 1140.)
Even if there were error, it was harmless beyond a reasonable doubt under either
the Chapman11 or the more lenient Watson12 harmless error standard. The MMP defense
applied only if the defendants did not earn a profit from their cultivation, distribution, or
sale of marijuana, and it applied to Matteucci only if he was Cindy’s primary caregiver.
(§ 11362.765, subd. (a); London, supra, 228 Cal.App.4th at pp. 553-554.)
The evidence that defendants were involved in a profit-making enterprise was
overwhelming. The YouTube videos show Benson displaying marijuana buds and
offering them for sale. Benson and Matteucci were growing 131 marijuana plants that
11 Chapman v. California (1967) 386 U.S. 18.
12 People v. Watson (1956) 46 Cal.2d 818.

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ranged from four to seven feet tall at the Slaughter property, along with 351 small
marijuana clones. They possessed a trim reaper, typically found on large cultivation
sites, that could be used to trim marijuana buds. Two digital scales, that usually indicate
the sale of marijuana, were found in the house, one with marijuana residue on it. Two
vacuum sealers that could be used to store marijuana by vacuum sealing were also found.
The 482 marijuana plants, if grown to maturity, would produce vastly more marijuana
than Benson’s and Cindy’s recommendations. Although Benson claimed he was
reimbursed only for his expenses, he did not keep close track of his expenses and
accepted monetary “donations” without regard to whether the amount covered overhead
costs and operating expenses. (London, supra, 228 Cal.App.4th at p. 556.) In addition,
as we have already explained, the evidence did not establish Matteucci’s status as
Cindy’s primary caregiver.
In light of the evidence of Benson’s and Matteucci’s extensive and elaborate
marijuana grow operation, the evidence that showed Matteucci was not Cindy’s primary
caregiver, and the jury’s finding that Benson possessed the marijuana for sale, any error
in the instructions on the MMP defense was “ ‘ “unimportant in relation to everything
else the jury considered on the issue in question, as revealed in the record.” ’ ” (People v.
Pearson (2013) 56 Cal.4th 393, 463 [when instructional error violates the United States
Constitution, the Chapman standard requires the People, in order to avoid reversal, to
prove beyond a reasonable doubt that the error did not contribute to the verdict].) Based
on the evidence, “it is clear beyond a reasonable doubt that a rational jury would have
reached the same verdict” regardless of any error the trial court made in instructing the
jury on the MMP defense. (See People v. Bryant (2014) 60 Cal.4th 335, 395 [When
applying the Chapman standard, the court asks “ ‘ “whether it is clear beyond a
reasonable doubt that a rational jury would have reached the same verdict absent the
error” ’ ”].)

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B. The Definition of Marijuana
Defendants also claim the trial court erred when it declined Benson’s request to
instruct the jury on the definition of marijuana contained in section 11362.77,
subdivision (d) (hereafter section 11362.77(d)) of the MMP.13
The jury was given the standard CALCRIM instructions that delineate the offenses
of unlawful marijuana transportation, cultivation, and possession, and include a definition
of marijuana derived from the general definitions section of the Health and Safety Code.
(See CALCRIM Nos. 2361, 2370, 2352, 2375; §§ 11000, 11018.) This definition
generally states that marijuana can include all parts of the plant, with some exceptions
such as stalks and certain types of seed derivatives.14 In contrast, section 11362.77(d)
contains a narrower definition of marijuana that confines it to “dried mature processed
flowers” of the plant. Over defense objection, the trial court declined Benson’s
attorney’s request to instruct the jury on this narrow definition. Consequently, the jury
instruction on the MMP defense did not contain the section 11362.77(d) definition of
marijuana.
Defendants contend the trial court was obligated to instruct the jury on the
section 11362.77(d) definition of marijuana because it was a legally correct instruction on
their theory of the case, i.e. that their activities constituted collective cultivation of
13 Matteucci joins with Benson in arguing the trial court erred in failing to give the
requested instruction. While only Benson’s attorney requested the instruction, we
consider Matteucci’s argument for the same reason we considered his argument with
respect to the first claim of instructional error.
14 The jury was instructed: “Marijuana means all or part of the Cannabis sativa L.
plant, whether growing or not, including the seeds and resin extracted from any part of
the plant. It also includes every compound, manufacture, salt, derivative, mixture, or
preparation of the plant, its seeds, or resin. It does not include the mature stalks of the
plant; fiber produced from the stalks; oil or cake made from the seeds of the plant; any
other compound, manufacture, salt derivative, mixture, or preparation of the mature
stalks (except the resin extracted therefrom), fiber, oil, or cake; or the sterilized seed of
the plant, which is incapable of generation.”

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medical marijuana within the meaning of section 11362.775 of the MMP. (People v.
Granados (1957) 49 Cal.2d 490, 496 [trial court erroneously refused instruction that
accurately stated the law and pinpointed the defense’s theory]; see People v. Saille (1991)
54 Cal.3d 1103, 1119 [trial court required to give pinpoint instruction upon request when
there is evidence to support the theory].) We disagree, as the trial court correctly ruled
the narrower definition of marijuana was not applicable to this case.
Section 11362.77 of the MMP provides that a qualified patient may “possess no
more than eight ounces of dried marijuana[,]” and “maintain no more than six mature or
12 immature marijuana plants[,]” unless a doctor recommends that this quantity does not
meet the patient’s medical needs. (§ 11362.77, subds. (a) & (b).)15 It is this section that
contains the narrower definition of marijuana: “Only the dried mature processed flowers
of female cannabis plant or the plant conversion shall be considered when determining
allowable quantities of marijuana under this section.” (§ 11362.77, subd. (d), italics
added.) “By its plain terms, section 11362.77’s narrower marijuana definition applies
only ‘when determining allowable quantities of marijuana under this section’ (id.,
subd. (d), italics added), that is, when determining the eight-ounce limitation set forth in
section 11362.77.” (Orlosky, supra, 233 Cal.App.4th at pp. 277-278.) It is apparent that
since the narrower definition includes only dried flowers, it cannot apply to the live
mature and immature marijuana plants that subdivision (a) of that section allows a
qualified patient or primary caregiver to maintain.
15 These subdivisions of section 11362.77 state: “(a) A qualified patient or
primary caregiver may possess no more than eight ounces of dried marijuana per
qualified patient. In addition, a qualified patient or primary caregiver may also maintain
no more than six mature or 12 immature marijuana plants 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.”

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Defendants’ MMP defense did not involve the eight-ounce limitation set forth in
section 11362.77. Instead, it involved whether defendants were collectively cultivating,
or growing, marijuana for medical purposes. (§ 11362.775; see CALCRIM No. 3413
[defining “cultivate” for purposes of the collective cultivation defense as “foster[ing] the
growth of a plant”].) The narrow definition used to determine allowable quantities under
section 11362.77, namely the “dried mature processed flowers” of the plant, cannot apply
to plants being cultivated, as they are necessarily live plants.
Defendants complain that because the narrow definition of marijuana was not
given, the prosecutor was able to argue at trial that the members of the collective were
cultivating more marijuana than was reasonably related to their current medical needs
based on the immature plants they were growing. Defendants seem to believe that if the
definition of marijuana is limited to dried processed flowers or mature plants when
asserting an MMP defense, they would not be guilty if they were cultivating only
immature plants. They are wrong. If defendants are correct and the narrow definition of
section 11362.77(d) applied to allowable quantities under the MMP defense, then the
defense would apply only to dried mature processed flowers, not to immature plants that
generally are illegal to transport, cultivate, or possess under former sections 11357,
11358, 11359, and 11360. In that situation, if a collective together possessed dried
processed flowers or mature plants for which the members had valid recommendations,
but also grew immature marijuana plants, the MMP defense would apply to the dried
flowers and mature plants, but not to the immature plants, which would be unprotected
from state prosecution. (See, e.g., Mentch, supra, 45 Cal.4th at p. 289 [primary caregiver
defense only protects the caregiver’s actions in providing marijuana to a qualified patient
for whom the caregiver was the designated primary caregiver; the defense does not
extend to marijuana the caregiver sells to others.].) Under that scenario, defendants
would be subject to prosecution for the immature plants they were growing and could not
invoke the MMP defense.

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In sum, section 11362.77(d)’s narrow definition of marijuana was not a correct
statement of the law as applied to defendants’ MMP defense. Accordingly, the trial court
did not err in refusing to give the instruction. (People v. Mackey (2015) 233 Cal.App.4th
32, 111.) Moreover, even if the instruction should have been given, the error was
harmless for the reasons stated in section III(A) – the evidence that the group was
engaged in a profit-making enterprise and that Matteucci was not Cindy’s primary
caregiver was overwhelming.
IV. Sentencing
A. Proposition 47
Matteucci was convicted and granted probation in this case on October 30, 2014.
On November 4, 2014, voters enacted Proposition 47, also known as “the Safe
Neighborhoods and Schools Act” (hereafter Proposition 47), which became effective the
next day. (Cal. Const., art. II, § 10, subd. (a).) The statutes enacted by the passage of
Proposition 47 classify as misdemeanors certain drug-related offenses that were
previously defined as felonies or wobblers, i.e. crimes punishable as either felonies or
misdemeanors at the trial court’s discretion. (People v. Lynall (2015) 233 Cal.App.4th
1102, 1108.)
Proposition 47 created a resentencing provision, Penal Code section 1170.18,
pursuant to which any person currently “serving a sentence for a conviction, whether by
trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under
the act [Proposition 47] had [it] been in effect at the time of the offense may petition for a
recall of sentence before the trial court that entered the judgment of conviction in his or
her case….” (Pen. Code, § 1170.18, subd. (a).) Eligible parties may also petition for the
redesignation of their felony drug convictions to misdemeanors. (Id., subd. (f).) Petitions
can only be filed by persons convicted of the offenses downgraded by Proposition 47,
and relief will be denied if they also have convictions for serious, violent, or specified
sex-related felonies. (Pen. Code, § 1170.18, subd. (i).) Even then, the court has the

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discretionary power to deny a petition if “resentencing the petitioner would pose an
unreasonable risk of danger to public safety,” a conclusion the court may draw from the
petitioner’s “criminal conviction history,” “disciplinary record and record of
rehabilitation while incarcerated,” and “[a]ny other evidence the court . . . determines to
be relevant.” (Id., subd. (b).)
Matteucci asserts his felony possession of concentrated cannabis conviction has
been rendered a misdemeanor pursuant to Proposition 47. He further asserts he is not
required to file a petition to recall his sentence in superior court under Penal Code
section 1170.18. Instead, he argues he is entitled to automatic resentencing because
Proposition 47 was enacted before the judgment in his case was final, citing In re Estrada
(1965) 63 Cal.2d 740, and even if not, we should remand the case to the trial court for a
hearing on the merits of his Proposition 47 claim without the need to file a petition.
In People v. Bradshaw (2016) 246 Cal.App.4th 1251 (Bradshaw), we observed
that “[s]everal cases have held Proposition 47 does not provide for automatic
resentencing of a defendant currently serving a felony sentence and is not automatically
applicable to those whose judgments are not yet final.” (Bradshaw, supra,
246 Cal.App.4th at p. 1257, citing People v. Scarbrough (2015) 240 Cal.App.4th 916,
924-925, People v. Shabazz (2015) 237 Cal.App.4th 303, 307, 312-314 (Shabazz),
People v. Noyan (2014) 232 Cal.App.4th 657, 672.) We expressly agreed “with the
reasoning and conclusion of these opinions, which limit defendants to the statutory
remedy, set forth in [Penal Code] section 1170.18, of petitioning for recall of sentence
(id., subd. (a)) or applying for designation of felony convictions as misdemeanors (id.,
subd. (f)), as appropriate, in the trial court once the judgment is final.” (Bradshaw,
supra, at p. 1257.)
Matteucci encourages us to depart from this precedent, asserting it is clear he is
entitled to relief since he has no prior criminal record, his crime is covered by
Proposition 47, and there is nothing in the record to show he is a danger to the public.

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But as we have recently held, the dangerousness determination should occur after both
the People and the defendant are permitted to address the issue. (People v. Bunyard
(2017) 9 Cal.App.5th 1237, 215 Cal.Rptr.3d 628, 635, citing Bradshaw, supra,
246 Cal.App.4th at p. 1258; Shabazz, supra, 237 Cal.App.4th at pp. 313-314.)16
Accordingly, we decline Matteucci’s invitation to reach a different result.
B. Failing to sentence on out-on-bail allegation
The People assert that remand of Benson’s case is necessary because the trial court
failed to sentence him on the out-on-bail special allegation. The information included a
special allegation charging Benson with committing count 1, transportation of marijuana,
while out on bail, in violation of Penal Code section 12022.1. This special allegation
provides for a consecutive two-year term of imprisonment. (Pen. Code, § 12022.1,
subd. (b).) Benson admitted the special allegation before trial began.
In the probation officer’s report prepared for Benson’s sentencing, the probation
officer recommended that Benson be given a suspended prison term of four years, four
months, which included a three year base term on count 4, the manufacture of
concentrated cannabis, and a concurrent three year term on count 1, transportation of
marijuana, with the section 12022.1 two-year enhancement stayed.
At the sentencing hearing, the trial court declined to follow the recommendation
and instead stated it was going to give Benson the aggravated term suspended, as it
believed this was an aggravated case that involved a “blatant violation of the marijuana
laws” and based on the videos, Benson deserved an aggravated term. The trial court
stated that while it was not going to send him to prison at that time, “if he violates the law
in any way I will send him to state prison gladly.” The prosecutor then pointed out an
16 We note that the issue of whether Proposition 47 applies retroactively to a
defendant who was sentenced before its effective date but whose judgment was not final
until after that date is pending before the California Supreme Court in People v. DeHoyos
(2015) 238 Cal.App.4th 363, review granted September 30, 2015, S228230.

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error in the probation officer’s report, which listed the Penal Code section 12022.1
enhancement as being found true by a jury instead of being admitted before trial. The
trial court sentenced Benson to an aggravated seven year term on count 4; a consecutive
eight month, or one-third the midterm of one year, term on count 1; and consecutive eight
month sentences on the remaining counts. The trial court suspended execution of the
sentence for five years. The trial court did not impose any sentence on the Penal Code
section 12022.1 enhancement, or state on the record whether it was staying or striking it.
The minute order also does not mention a judgment on the enhancement.
Penal Code section 12022.1 provides for an enhanced sentence when a defendant
commits a felony while released on bail or his own recognizance after being charged with
a previous felony. In such cases, the defendant “shall be subject to a penalty
enhancement of an additional two years [in state prison], which shall be served
consecutive to any other term imposed by the court.” (Pen. Code, § 12022.1, subd. (b).)
Additionally, subdivision (e) provides that, if the defendant is sentenced to prison on the
first-charged felony and convicted of the subsequently committed felony (or “secondary
offense”), “any [state prison] sentence for the secondary offense shall be consecutive to
the primary sentence.”
Penal Code section 1385, subdivision (a) authorizes a judge to dismiss an action
on its own motion “in furtherance of justice,” and requires the reasons for dismissal to be
stated orally on the record. A trial court has discretion under Penal Code section 1385 to
strike an admitted Penal Code section 12022.1 enhancement, but not to stay it. (People v.
Meloney (2003) 30 Cal.4th 1145, 1156, 1165; People v. Jones (2007) 157 Cal.App.4th
1373, 1382-1383.) “The failure to impose or strike an enhancement is a legally
unauthorized sentence. . . . ” (People v. Bradley (1998) 64 Cal.App.4th 386, 391.)
Here, the record is silent on whether the trial court intended to impose or strike the
Penal Code section 12022.1 enhancement. While the probation officer recommended it
be stayed, that is not an authorized sentence. Benson contends we should infer the trial

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court intended to strike the enhancement since it did not follow the probation officer’s
recommended sentence and omitted reference to the enhancement while pronouncing
sentence, citing In re Candelario (1970) 3 Cal.3d 702, 706. We do not believe a
reasonable inference can be made that the trial court intended an act of leniency,
however, in light of its statements that it found Benson’s crimes to be aggravated.
Accordingly, the case must be remanded for the trial court to exercise its discretion to
either strike or impose the on-bail enhancement.
DISPOSITION
Benson’s case is remanded for resentencing to allow the superior court to consider
whether the Penal Code section 12022.1 enhancement should be stricken under Penal
Code section 1385 or imposed. In all other respects, Benson’s and Matteucci’s
judgments are affirmed.
_____________________
GOMES, Acting P.J.
WE CONCUR:
_____________________
PEÑA, J.
_____________________
SMITH, J.

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