P. v. Wright 8/31/04 CA4/3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: G031061

Case Date: 08/31/2004

Preview:Filed 8/31/04

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE THE PEOPLE, Plaintiff and Respondent, v. SHAUN ERIC WRIGHT, Defendant and Appellant. G031061 (Super. Ct. No. O1WF2416) OPINION

Appeal from a judgment of the Superior Court of Orange County, James A. Stotler, Judge. Affirmed in part and reversed in part. Maureen J. Shanahan, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela A. Ratner Sobeck and Erika Hiramatsu, Deputy Attorneys General, for Plaintiff and Respondent.

Shaun Eric Wright was charged with transporting marijuana and possessing it for sale, as well as driving with a suspended license. After pleading guilty to the latter 1

charge, he was convicted of the drug charges and sentenced to a year in jail. Wright contends he did not get a fair trial because the court precluded him from relying on the compassionate use defense. We agree and reverse his convictions on the drug counts. In all other respects, we affirm the judgment. * * *

On the morning of September 20, 2001, someone informed the Huntington Beach police there was marijuana inside a black pickup truck at a certain carwash. A short time later, Officer Mark Armando stopped the truck as it was leaving the carwash. Walking up to the vehicle, Armando observed Wright in the driver's seat. He also noticed a backpack on the passenger seat and a strong odor of marijuana wafting from the truck. After informing Wright about the tip that had come in, Armando asked him if there was marijuana in his truck. Wright said no. Armando had him step out of the truck and Sergeant Henry Cuadras patted him down and seized a baggie of marijuana from his front pocket. Armando then searched Wright's backpack. In the front pouch, he found a black bag containing six baggies of marijuana and an electronic scale. Armando found two larger baggies of marijuana inside the main compartment of the backpack. Then he searched Wright's truck and discovered about a pound of marijuana wrapped in a shirt in the back seat. All told, the officers seized approximately 19 ounces of marijuana from Wright. Armando and Cuadras testified to their opinion Wright possessed the marijuana for sale. In reaching this opinion they relied on the presence of the scale, the quantity of marijuana involved, and the way it was packaged and concealed. The officers knew nothing about Wright's medical history or any medical authorization he had to use marijuana. Wright testified he has used marijuana since 1991 to alleviate physical pain and emotional stress. He said his physical pain stems from various injuries he suffered 2

over the years, including a broken leg, a dislocated shoulder and a broken collarbone. Wright also said he experiences nausea, bloating and diarrhea after eating, which diminishes his appetite. He said smoking marijuana eases his stomach discomfort and increases his appetite. Wright said he obtains similar relief by adding marijuana to his food. He said it takes about a pound of marijuana for him to produce eight edible ounces of the drug. That's because he extracts the seeds and stems and grinds up the remaining plant material before cooking with it. Asked why some of the marijuana found in his truck was packed in baggies, Wright said it came that way when he bought it. He said he picked it up the morning he was arrested, went to get his truck washed, and was on his way home when he was stopped. Dr. William Eidelman, a specialist in alternative medicine, testified that Wright came to him about three months before he was arrested. Wright complained of chronic pain in his shoulders, leg and stomach. After examining him and reviewing some of his medical records, Dr. Eidelman approved the use of marijuana to relieve his pain. During the consultation, Wright told him that he prefers to eat marijuana and that a pound usually lasts him about two or three months. Dr. Eidelman testified this was a reasonable amount of consumption in light of Wright's condition. Midway through the trial, the court held a hearing outside the presence of the jury to determine whether Wright be allowed to rely on the compassionate use defense. At the hearing, Wright described his physical ailments, and Eidelman testified he recommended marijuana to Wright to alleviate his pain. Eidelman said he did not recommend a particular dosage, because "the dose is generally . . . self-regulating." He also said, "you have to use a much larger amount when you eat [marijuana than when you smoke] it to get the same kind of effect." Nevertheless, the trial judge ruled "that in this particular case, due to the quantity [of marijuana] involved and due to the record that's been presented to me, I do 3

not feel compassionate use applies to the transportation count nor the possession for sale count." The court also found the defense inapplicable to the charge of simple possession, which was alleged as a lesser included offense of possession for sale. Accordingly, the court did not allow Wright's witnesses or attorney to mention this defense to the jury, nor did the court instruct on compassionate use. However, as set out above, the court did allow Wright to present evidence that Eidelman recommended the use of marijuana to alleviate the pain associated with his various ailments. In the end, the jury convicted Wright of both transporting marijuana and possessing it for sale. (See Health & Saf. Code,

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