Filed 12/11/15 P. v. Manson CA2/1

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

ARSEN MANSON,

Defendant and Appellant.

 B253254

 (Los Angeles County

 Super. Ct. No. MA059036)

APPEAL from a judgment of the Superior Court of Los Angeles County, Bernie 

C. LaForteza, Judge. Affirmed in part, reversed in part and remanded with directions.

Alan Stern, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews and 

Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.

___________________________
2

SUMMARY

Arsen Manson appeals from a judgment entered after a jury convicted him of four 

counts of selling or offering to sell marijuana (Health & Saf. Code, § 11360, subd. (a)), 

and one count each of possession of marijuana for sale (§ 11366), transportation of 

marijuana (§ 11360, subd. (a)), maintaining a place for selling marijuana (§ 11366), and 

misdemeanor battery (Pen. Code, § 242). 

We affirm in part and reverse in part.

FACTS AND PROCEEDINGS BELOW

Appellant represented himself in propria persona at trial with the assistance of a 

translator. 

I. Prosecution Evidence

Appellant opened a marijuana dispensary called “Health Bud Pro” in Lancaster on 

or about January 12 or 13, 2013. The dispensary operated seven days a week until March 

14, 2013, when deputies from the Los Angeles Sheriff’s Department executed search and 

arrest warrants. 

A. Civilian Witnesses

Appellant opened the dispensary with the help of Olin Randall Hanson and Emily 

Perez, Hanson’s girlfriend, who both had experience working in other medical marijuana 

dispensaries and who wanted to become partners in or invest in a medical marijuana 

dispensary. Hanson and Perez contributed $10,000 cash and six pounds of marijuana to 

start the business with the understanding that Hanson would be “half partners” with 

appellant, receiving half of the income from the dispensary, and Perez would receive 

$10,000 per month.1 

Hanson understood from his prior experience that dispensaries were nonprofit and 

could only provide marijuana to people who joined the cooperative with verified 

authorizations from doctors and filled out required paperwork. As members of the 

1 Appellant never paid Hanson or Perez any money from the business. 
3

cooperative, patients had certain rights and responsibilities and a board of directors ran 

the cooperative. Perez understood that “verifying recommendations” was essential to 

running a legal marijuana dispensary and accurate record keeping was critical.2 

After it opened, the business caught on and grew. It operated on a cash basis and 

Hanson or Perez counted the money in the cash register at the end of the day and turned 

the money over to appellant who would put it in his pocket. Hanson estimated during the 

first week on a slow day he counted $1,000 to $1,200 and on a good day between $3,000 

and $4,000. Perez indicated she counted between $3,000 to $4,000. 

When Perez expressed to appellant concern about following correct practices, 

appellant complained that she was ruining his business and stated “everybody’s money is 

good here.” Perez observed appellant selling marijuana at the dispensary without asking 

for identification or “authorization.” Hanson also observed appellant selling to customers 

who did not have proper authorization, telling Hanson that it was okay because he knew 

the people. Hanson and Perez’s association with appellant’s dispensary ended on January 

26, 2013, after appellant became angry with Perez and choked her in front of Hanson and 

Erika Duran, a friend of Perez and Hanson.3 

Duran was at the dispensary on two or three occasions but did not participate in 

selling marijuana, although she did help write prices for marijuana on a dry-erase board. 

She observed appellant sell marijuana usually without asking for identification from 

customers, and when he did ask, he simply looked at it and hand it back without taking 

steps to verify the information before completing the transaction. 

Norma Wagers, a customer, testified that she showed appellant her paperwork the 

first time she went to appellant’s dispensary in January or February 2013 and appellant 

2

“Verifying” referred to calling a doctor’s office to confirm that a patient is 

authorized to use medical marijuana and the authorization had not expired. 

3

The jury convicted appellant of misdemeanor battery and found him not guilty of 

criminal threats. On appeal, appellant does not challenge the misdemeanor battery 

conviction.
4

made photocopies, but in 10 to 15 subsequent visits to the dispensary appellant4never 

asked for her identification or her medical marijuana recommendation and he did not

look her up in any paperwork or on the computer before making the sale.5 When Wagers 

expressed concern to appellant about the lack of organization of the paperwork and the 

legality of his operation, appellant told her not to worry about it and that “he had it taken 

care of.” Nonetheless, in early March 2013, Wagers volunteered to try to organize 

appellant’s paperwork and, while working on a laptop computer at the dispensary, 

observed five to 10 transactions a day where customers were allowed to purchase 

marijuana without proper paperwork. Wagers tried to tell customers who came in 

without their recommendation or without their identification that they needed to come 

back but appellant would let them make their purchase. Wagers received two grams of 

marijuana total for her four days of work. 

Jason Orta was a customer at appellant’s dispensary who later worked as security 

outside the dispensary and inside selling marijuana in exchange for one gram of 

marijuana a day.6 If a person did not have the proper paperwork, Orta would tell 

appellant and appellant would let them in saying it was okay. 

Alejandro Robles was a customer at appellant’s dispensary who also had owned 

several retail businesses. Appellant asked Robles for help paying his state sales taxes but 

Robles could not get an exact number for appellant’s sales because the records were 

incomplete. Robles also served as a courier picking up marijuana purchased for 

appellant’s dispensary from a store in Santa Clarita, but had no role in paying for the 

marijuana as appellant made the arrangements. Robles estimated appellant’s dispensary 

4 Wagers stated that she might have bought from someone other than appellant on 

one occasion. 

5

In contrast, Wagers described her experience at two other dispensaries; one 

required her to show her recommendation and identification every time and the other kept 

the recommendation on file and required her to show her identification. 

6 Orta pled guilty to sales of marijuana in exchange for a probationary sentence 

without any additional jail time in exchange for his promise to testify if subpoenaed. 
5

had a profit margin of 10 to 15 percent, and possibly as high as 20 percent. Robles was 

given marijuana for his work. 

B. Law Enforcement Witnesses

On January 23, 2013, Los Angeles County Sheriff’s Deputy Mark Donnel and his 

partner went to meet appellant at his dispensary to follow up on a written report from 

appellant that he had been the victim of a robbery at gunpoint the previous evening. 

After describing the robbery, appellant told Deputy Donnel that he might have paperwork 

related to one of the robbers who might have been at the dispensary the day before the 

robbery and retrieved a stack of copies of marijuana recommendations, but the copies 

were not organized or annotated in any way and did not indicate who had been to the 

dispensary the day before. When Deputy Donnel asked how much money the dispensary 

made, appellant responded, “Give me a month and I’ll make you $10,000.” 

Deputy Donnel told Sergeant Steven Owen, the investigating officer in this case, 

that he was concerned about how appellant’s dispensary was being run and on February 

20, 2013, Sergeant Owen went to the dispensary to speak with appellant about the 

robberies and his business. When Sergeant Owen asked how much money a day 

appellant was making selling marijuana, appellant said he was making $500 a day in 

profit. Appellant showed Sergeant Owen the dispensary, including the sales room where 

there was marijuana and a dry erase board with prices. Appellant told Sergeant Owen 

that he would go to Los Angeles to buy marijuana and drove it in his van to the 

dispensary and that at the end of the day he would take the unsold marijuana back to his 

house. 

The next day, February 21, 2013, Sergeant Owen again went to appellant’s 

dispensary and after talking about the robbery, talked about how appellant’s dispensary 

made money. Appellant stated that he bought marijuana from another dispensary, 

transported it back to his dispensary, and marked up the price. For example, appellant 

explained, if he purchased marijuana at $10 per gram, he would raise the price and sell it 

for $12 per gram or if he paid $240 per ounce he would mark up the price and sell it for 

$279 per ounce. Appellant indicated that he sold $1,000 worth of marijuana in a day and 
6

$100 of that was pure profit. On a “good day,” appellant’s dispensary sold $3,000 to 

$5,000 worth of marijuana. Appellant told Sergeant Owen that selling marijuana was 

“big business” in terms of the “money you can make.” Appellant told Sergeant Owen 

that the last time he had driven to Los Angeles to purchase marijuana was two days 

before their conversation on February 21, 2013. Appellant replenished his marijuana 

supply every couple days and also used “drivers” to transport the marijuana to his 

dispensary. The more marijuana appellant bought, the “better deal” he would get on the 

price. 

That same day, February 21, 2013, Sergeant Owen had sheriff deputies participate 

in traffic stops of people leaving appellant’s dispensary to see if they were in possession 

of medical marijuana authorization cards and if they had purchased legally. Among the 

customers stopped that day were Renae Campbell. Campbell, who received a marijuana 

ticket for possession of less than an ounce of marijuana, did not have her medical 

marijuana documentation with her because she just had to show her identification to 

purchase from appellant. Campbell had purchased marijuana from appellant’s dispensary 

around 10 times. 

On February 26, 2013, Sergeant Owen again went to appellant’s dispensary and 

spoke to appellant. Appellant seemed confused about what was necessary for a legal 

marijuana cooperative, including whether a federal, state or county governing agency was 

responsible for them. Appellant identified himself as the president of the dispensary coop, which had no other officers or members. Appellant said he had a lot of customers, 

was making $150-160 in profit a day, and paying $90 in unspecified taxes for every 

$1,000 he made. Appellant only talked about buying and transporting marijuana and did 

not mention growing marijuana. 

On March 7, 2013, Sergeant Owen had Deputy Larry Pico go to appellant’s 

dispensary with cash and keys, but no identification. Pico went to the dispensary twice 

that day. On the first visit, Pico was asked at the door if he had been to the dispensary 

before and Pico answered yes and was allowed inside. Appellant and another person 

were working at the sales counter, and after waiting for another customer to complete her 
7

purchase, Pico bought $40 worth of one type of marijuana and $8 of another type without 

being asked for identification. On the second visit about three hours later, appellant 

asked Pico if he had been to the dispensary before, Pico said he had earlier that day and 

wanted to buy more of what he had tried, Pico was allowed in and purchased one-half 

ounce of marijuana from a worker for $100 after negotiating a $25 discount. Pico then 

asked if he could buy a larger quantity of marijuana at a price below the $225 per ounce 

listed price and appellant, who was present, responded that if Pico purchased a few 

ounces he could pay $180 per ounce and could come back later that day to get it. 

That same day, March 7, 2013, Sergeant Owen and his partner parked outside 

appellant’s dispensary and conducted traffic stops of customers, including Daniel Kincaid 

a passenger in one of the stopped vehicles. Kincaid, who was issued a citation, had just 

purchased $50 worth of marijuana from appellant’s dispensary but did not have his 

authorization on him that day and was not asked for identification or his authorization by 

anyone at appellant’s dispensary. Kincaid had been asked for his documentation the first 

time he went to appellant’s dispensary but did not have to fill out any paperwork. 

On March 14, 2013, Sergeant Owen and a team of deputies executed search and 

arrest warrants. Approximately three pounds of marijuana were found in a lockbox at the 

dispensary and analyzed by police. 

A marijuana dispensary expert testified that a legal marijuana collective in 

California was a “jointly owned and operated entity working together towards the 

common goal of cultivation and the distribution of marijuana to its members” and where 

members reimbursed the collective for the convenience of someone helping provide the 

medical marijuana. In a legal cooperative, marijuana was cultivated by members and it 

cannot make a profit. It would be illegal to sell marijuana outside the membership group

even to someone who had a medical authorization and it would be illegal to buy 

marijuana from one collective to sell it in another collective. 

II. Defense Evidence

Appellant showed evidence that Kincaid had a marijuana recommendation. 

Appellant testified that operating a marijuana business was a “new thing in California” 
8

and no one knew much about it so when someone wants to open a marijuana business he 

finds a knowledgeable attorney for consultation. Moreover, the California Attorney 

General also provides rules for how to conduct the business properly. Appellant testified 

as to the difference between a for-profit and a non-profit organization, stating a nonprofit 

“can receive only donations, and they do not have to pay taxes from this amount. [¶] So 

that means that the profit, the surplus, is increased. This constitute nine percent, and 

every three months, you can spend this nine percent on—on the turnover, cash flow.” 

Appellant conceded he was not “accurate” with the paperwork, saying papers were lost 

before and after the robberies. Appellant also testified about the high crime rate in 

Lancaster, hiring Orta, Robles and others and “training them to work correctly, without 

violating the law.” 

III. Conviction and Sentence

The jury convicted appellant of four counts of selling or offering to sell marijuana 

(Health & Saf. Code, § 11360, subd. (a))—count 1 was for the period between January 

14, 2013 to March 14, 2013; in count 7 was for the February 21, 2013 offer to sell to 

Campbell; count 9 was for the March 7, 2013 offer to sell to Deputy Pico; and count 10, 

was for the March 7, 2013 offer to sell to Deputy Pico. The jury also convicted appellant 

in count 2 of possession of marijuana for sale (§ 11366), count 3 of transportation of 

marijuana (§ 11360, subd. (a)), count 4 of maintaining a place for selling marijuana (§ 

11366), and count 6 of misdemeanor battery (Pen. Code, § 242). 

The trial court initially sentenced appellant on November 22, 2013, to an 

aggregate term of four years and six months in local county custody under Criminal 

Justice Realignment Act of 2011 (Realignment Act) (Pen. Code, § 1170, subd. (h)).7 On 

December 24, 2013, the trial court determined it had erroneously sentenced appellant 

under the Realignment Act to local custody and resentenced appellant to the same 

aggregate term to be served in state prison. 

Appellant filed a notice of appeal. 

7 All further statutory references are to the Penal Code unless otherwise indicated.
9

DISCUSSION

On appeal, appellant argues that his convictions of offers to sell marijuana under 

counts 7, 9 and 10 are barred by section 954, the cumulative effect of four instructional 

errors is prejudicial, he was incorrectly sentenced to state prison rather than local custody 

under section 1170, subdivision (h), and the removal of standby counsel was in error. We 

agree with appellant’s sentencing error claim. In all other respects, we affirm.

I. Claim of Section 954 Error

Appellant was charged and convicted under section Health and Safety Code 

section 11360, subdivision (a) for sale, offer to sell, or transportation of marijuana in 

count 1 during the period between January 14, 2013, and March 14, 2013, and also 

convicted under section 11360, subdivision (a) in count 7 for the sale or offer to sell to 

Campbell on February 21, 2013, in count 9 for the sale or offer to sell to Deputy Pico on 

March 7, 2013, and in count 10 for a second sale or offer to sell to Deputy Pico on March 

7, 2013. Appellant contends that under section 954 the trial “court should [have] 

precluded the prosecutor from alleging individual sales charges (counts 7, 9 and 10) that 

were necessarily included within . . . the general timeframe charge for the same offense 

contained in count 1. In essence, the court should have informed the prosecutor that he 

had two options, to either elect between the general timeframe charge or the necessarily 

included individual sales charges and any other individual sales charges the prosecutor 

could establish based on the evidence.” We do not believe section 954 requires such an 

election.

Section 954 provides: “An accusatory pleading may charge two or more different 

offenses connected together in their commission, or different statements of the same 

offense or two or more different offenses of the same class of crimes or offenses, under 

separate counts . . . . The prosecution is not required to elect between the different 

offenses or counts set forth in the accusatory pleading, but the defendant may be 

convicted of any number of the offenses charged, and each offense of which the 

defendant is convicted must be stated in the verdict or the finding of the court . . . .” (§ 

954.) Thus, as the Supreme Court has stated, “[s]ection 954 generally permits multiple 
10

conviction.”8 (People v. Reed (2006) 38 Cal.4th 1224, 1227; see People v. Kirvin (2014) 

231 Cal.App.4th 1507, 1518 [collecting cases where courts have found section 954 to 

allow multiple convictions for crimes that do not treat harm or damage as one of their 

elements—even if the crimes are part of the same impulse, intention or plan—as long as 

each conviction reflects a completed criminal act].) “A judicially created exception to 

the general rule permitting multiple conviction ‘prohibits multiple convictions based on 

necessarily included offenses.’” (People v. Reed, supra, 38 Cal.4th at p. 1227.) Thus, “if 

a crime cannot be committed without also necessarily committing a lesser offense, the 

latter is a lesser included offense within the former.” (Ibid.) 

This case does not involve a lesser included offense.9 Rather, it involves multiple 

acts or violations of the same statute. As appellant acknowledges, the cases he cites 

reversing multiple convictions “involved a single occurrence.” (See, e.g., People v. 

Coyle (2009) 178 Cal.App.4th 209, 217 [in case involving three counts of murder based 

on one victim, court noted the three courts charged a single offense, murder, on alternate 

theories]; People v. Ryan (2006) 138 Cal.App.4th 360, 369 [in case involving two counts 

for each forged check, stating court had “found no case permitting multiple forgery 

convictions, with respect to a single instrument”].) Here, appellant’s acts are not limited 

to the three specific instances of offering to sell marijuana described in counts 7 

(Campbell on Feb. 21, 2013), 9 (Pico on Mar. 7, 2013) and 10 (Pico a second time on 

Mar. 7, 2013); appellant operated a marijuana dispensary during the general timeframe 

alleged in count 1 (Jan. 14, 2013 & Mar. 14, 2013) and there was extensive evidence, as 

summarized above, that throughout the operation of the dispensary, appellant was 

8

The counterpart to section 954 is section 654 which prohibits multiple 

punishments for the same act or omission. (§ 654; People v. Reed, supra, 38 Cal.4th at p. 

1227.) “When section 954 permits multiple conviction, but section 654 prohibits 

multiple punishment, the trial court must stay execution of sentence on the convictions 

for which multiple punishment is prohibited.” (People v. Reed, supra, 38 Cal.4th at p. 

1227.)

9 Although the jury was instructed on a lesser included offense of misdemeanor 

simple possession of marijuana, it convicted appellant only of the greater crimes. 
11

offering to sell and sold marijuana on numerous occasions to various individuals other 

than on the dates and to the persons specified in counts 7, 9 and 10.10

II. Instructional Error Claims

Appellant makes four claims of instructional error. On appeal, we apply a de novo 

standard of review for claims of instructional error. (People v. Manriquez (2005) 37 

Cal.4th 547, 581; People v. Alvarez (1996) 14 Cal.4th 155, 217.)

A. Offering to Sell Instruction 

Appellant’s first claim of instructional error is based on the trial court’s use of 

CALCRIM No. 2351 as to counts 1, 7, 9 and 10. Specifically, appellant contends that 

No. 2351 applies to an offer to sell rather than actual sales of marijuana and that the court 

should have instructed the jury on actual sales under CALCRIM No. 2350. We find no 

error.

The elements for selling marijuana are (1) defendant sold a controlled substance; 

(2) defendant knew of its presence; (3) defendant knew of the substance’s nature or 

character as a controlled substance; and (4) the controlled substance was marijuana. 

(CALCRIM No. 2350.) The elements for offering to sell marijuana are (1) defendant 

offered to sell marijuana, a controlled substance; and (2) when the defendant made the 

offer, he intended to sell the controlled substance. (CALCRIM No. 2351.) 

In general, “‘[a] party may not complain on appeal that an instruction correct in 

law and responsive to the evidence was too general or incomplete unless the party has 

requested appropriate clarifying or amplifying language.’” (People v. Hart (1999) 20 

10 In arguing that section 954 prohibits a prosecutor from electing to charge a 

defendant with counts based on specific instances as well as a general timeframe charge, 

appellant notes that the jury was “not instructed that the specific instances of sales related 

to counts 7, 9, and 10 could not also be used to convict appellant of the general timeframe 

charge contained in count 1,” the jury might have concluded that because he was guilty of 

the individual sales counts he was “necessarily also guilty of the separate timeframe 

charge contained in count 1.” To the extent appellant raises an instructional error claim, 

any alleged error was harmless as it is not reasonably probably that appellant would have 

obtained a more favorable result absent the error in light of the extensive evidence 

beyond the three specific instances charged in counts 7, 9, and 10. (See section II, post.)
12

Cal.4th 546, 622; People v. Anderson (2007) 152 Cal.App.4th 919, 927. [“Failure to 

object to instructional error forfeits the issue on appeal unless the error affects 

defendant’s substantial rights”].) Here, there is no dispute that CALCRIM No. 2351 is a 

correct statement of the law. Appellant did not object to the trial court’s jury instruction 

using CALCRIM No. 2351. Moreover, while the evidence may have also supported an 

instruction charging appellant with completed sales, the evidence nonetheless supported 

the jury’s finding as to each element of the offense of an offer to sell marijuana. 

B. Transportation Instruction

As to count 3, the transportation charge, appellant contends the trial court erred in 

again using CALCRIM No. 2351 applicable to offers to sell marijuana. 

The record shows that the trial court included count 3 with counts 1, 7, 9 and 10 as 

charging appellant with “offering to sell marijuana,” and did not otherwise instruct the 

jury on count 3’s transportation charge. The Attorney General’s office concedes that it 

“appears that the trial court failed to instruct the jury on transportation under Health and 

Safety Code section 11360, subdivision (a),” but argues that the error was not prejudicial 

because the evidence showed that appellant transported marijuana himself and also had 

others transport marijuana for him. 

Appellant appears to concede that none of the alleged instructional errors standing 

alone would be deemed prejudicial under People v. Watson (1956) 46 Cal.2d 818, 836 

[the verdict must be upheld unless it appears “reasonably probable” the defendant would 

have obtained a more favorable outcome had the error not occurred].) And as discussed 

above and below, we find no error in the other instruction claims. 

In any event, it does not appear reasonably probable that appellant would have 

obtained a more favorable outcome absent the transportation instruction error. The 

elements for transporting marijuana, are (1) defendant transported a controlled substance; 

(2) defendant knew of its presence; (3) defendant knew of the substance’s nature or 

character as a controlled substance; (4) the controlled substance was marijuana; and (5) 

the marijuana possessed by defendant weighed more than 28.5 grams. (CALCRIM No. 

2361.) Here, the jury also returned a guilty verdict on count 2 for possession for sale of 
13

marijuana, finding, inter alia, elements (2) through (4)—that defendant knew of the 

presence of the controlled substance, knew the substance’s nature or character as a 

controlled substance, and the controlled substance was marijuana. (Compare CALCRIM 

Nos. 2352 & 2361.) Moreover, the evidence included testimony from Sergeant Owen 

that appellant stated that “every couple days” appellant bought marijuana from 

dispensaries in Los Angeles and he or “his drivers” would bring the marijuana to his 

dispensary by car and, at the end of each day, he would move any unsold marijuana to his 

house. Appellant also told Sergeant Owen that the more marijuana he bought, the 

cheaper price or “better deal” he would get, explaining if he paid $10 for a gram of 

marijuana, he would sell it for $12 per gram and likewise that “he’ll pay $240 for an 

ounce, he’ll mark up the price and sell it for $279 an ounce.” Under these circumstances, 

it is not reasonably probable that appellant would have obtained a more favorable 

outcome absent the trial court’s error. 

C. Aiding and Abetting Instruction

Appellant next contends the trial court erred in failing to instruct the jury sua 

sponte on aiding and abetting liability. We disagree. 

“‘“[I]n criminal cases, even in the absence of a request, the trial court must instruct 

on the general principles of law relevant to the issues raised by the evidence. [Citations.]

The general principles of law governing the case are those principles closely and openly 

connected with the facts before the court, and which are necessary for the jury’s 

understanding of the case.”’” (People v. Breverman (1998) 19 Cal.4th 142, 154.) The 

duty to instruct, sua sponte, on general principles closely and openly connected with the 

facts before the court encompasses an obligation to instruct on all essential elements of 

the charged offense where it relates to a material issue presented by the evidence. 

(People v. Banks (1983) 147 Cal.App.3d 360, 367.) Generally, “[a]ll persons concerned

in the commission of a crime, . . . whether they directly commit the act constituting the 

offense, or aid and abet in its commission, . . . are principals in any crime so committed.” 

(§ 31.) As our Supreme Court has explained, “[i]nstructions on aiding and abetting are 

not required where ‘[t]he defendant was not tried as an aider and abettor, [and] there was 
14

no evidence to support such a theory . . . .’” (People v. Young (2005) 34 Cal.4th 1149, 

1201, quoting People v. Sassounian (1986) 182 Cal.App.3d 361, 404.) Here, appellant 

was tried on the theory that he was a direct perpetrator of the crimes and no evidence was 

presented suggesting that appellant merely acted as an aider and abettor. Thus, the trial 

court did not err in not sua sponte instructing the jury on an aiding and abetting theory. 

D. Medical Marijuana Program Act (MMPA) Defense Instruction

Finally, appellant argues that the trial court erred when it declined to give an

MMPA defense instruction. We find no error.

The MMPA bars individuals and any collective, cooperative, or other group from 

transforming medical marijuana projects authorized under the MMPA into for-profit 

enterprises. (Qualified Patients Assn. v. City of Anaheim (2010) 187 Cal.App.4th 734, 

746; Health & Saf. Code, § 11362.765, subd. (a) [“nothing in this section shall authorize . 

. . any individual or group to cultivate or distribute marijuana for profit”].) “The law 

does not sanction sales for profit even between members of the same collective who each 

have a physician’s marijuana recommendation.” (People v. Sandercock (2013) 220 

Cal.App.4th 733, 739; see People v. Solis (2013) 217 Cal.App.4th 51, 54 [defendant who 

admitted receiving $80,000 in personal income from marijuana collective not entitled to 

MMPA instruction]; People v. Jackson (2012) 210 Cal.App.4th 525, 538 [“there is little 

doubt the Legislature did not intend to authorize [MMPA] profit-making enterprises”]; 

People v. Colvin (2012) 203 Cal.App.4th 1029, 1040-1041 [137 Cal.Rptr.3d 856], 

quoting Guidelines, § IV.B.5 at p. 10 [“‘[a]ny monetary reimbursement that members 

provide to the collective or cooperative should only be an amount necessary to cover 

overhead costs and operating expenses’”]; People v. Baniani (2014) 229 Cal.App.4th 45, 

61 [under MMPA, “sales for profit remain illegal”].) 

Before trial, the court informed appellant that if he had “competent evidence as to 

your defense that you conducted your activities within the Compassionate Use Act and 

The Medical Marijuana Program Act,” then he was free to present the evidence subject to 
15

the Evidence Code.11 Later, in discussing jury instructions, the court asked appellant if 

he was requesting the instruction on the MMPA defense, appellant responded, “What 

defense? Oh, no, I don’t want any defense.” Although appellant on appeal notes that his 

claims of profit to Deputy Owen could be no more than braggadocio and may not have 

factored in the expenses and costs of operating the dispensary, at trial appellant never 

provided evidence to support these theories. Appellant’s testimony at trial did not 

address his dispensary’s profit—or lack of profit—or the costs of its operation to dispute 

the prosecution evidence that he was making a profit on the marijuana sales.12 

Moreover, the MMPA also assumes that the collective or cooperate is cultivating 

the marijuana, rather than purchasing marijuana from outsiders. (Health & Saf. Code, § 

11362.775 [qualified individuals “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”].) Thus, the guidelines 

issued by the Attorney General state that “The collective should not purchase marijuana 

from, or sell to, non-members; instead, it should only provide a means for facilitating or 

coordinating transactions between members.” (Cal. Atty. Gen., Guidelines for the 

Security and Non-diversion of Marijuana Grown for Medical Use (Aug. 2008), § IV.A.2., 

p. 8.)13 “Cooperatives and collectives should acquire marijuana only from their 

constituent members, because only marijuana grown by a qualified patient or his or her 

11 The trial court also told appellant that he could not present hearsay evidence of 

advice from his civil attorney about establishing his dispensary. 

12 Rather, his testimony talked generally about the Attorney General’s Guidelines 

and advice from an attorney on how to set up a nonprofit marijuana business, and 

included the statements that a “nonprofit organization can only receive donations, and 

they do not have to pay taxes from this amount” and that profit of 9 percent could be 

spent every three months on “turnover, cash flow.” 

13 These guidelines, while not binding, have been given considerable weight by the 

courts when determining whether an operation qualifies as a collective under the MMPA. 

(People v. Colvin, supra, 203 Cal.App.4th at p. 1040, fn. 11; Qualified Patients Assn. v. 

City of Anaheim, supra, 187 Cal.App.4th at p. 748.) 
16

primary caregiver may lawfully be transported by, or distributed to, other members of a 

collective or cooperative (§§ 11362.765, 11362.775). The collective or cooperative may 

then allocate it to other members of the group. Nothing allows marijuana to be purchased 

from outside the collective or cooperative for distribution to its members. Instead, the 

cycle should be a closed-circuit of marijuana cultivation and consumption with no 

purchases or sales to or from non-members.” (Guidelines, § IV.B.4., p. 10, italics added.)

Appellant’s testimony did dispute the prosecution’s evidence that the dispensary was 

buying marijuana from outside dispensaries to re-sell. 

In light of the evidence at trial, we find no error in the trial court’s decision not to 

instruct on the MMPA defense.14

III. Sentencing Error Claim

Appellant contends under the Realignment Act (§ 1170, subd. (h)), he should have 

been sentenced to the county jail, and not state prison. Specifically, appellant contends 

that the trial court erred in sentencing him to state prison based on the stayed sentence in 

count 4. We agree.

A. Relevant Trial Court Proceedings

At the sentencing hearing on November 22, 2013, the trial court sentenced 

appellant to the high term of four years on count 1, a consecutive term of six months on 

count 6, and to the midterm on counts 2, 3, 4, 7, 9 and 10 but stayed those sentences 

under section 654. The court ordered appellant to serve his aggregate term of four years 

and six months in local county custody. 

A month later, on December 24, 2013, the trial court held another hearing, stating 

that it had found a mistake because the court had sentenced appellant on count 4 

(maintaining a place for selling controlled substance) to the midterm of two years and 

14 In a footnote, appellant argues that the trial court’s inclusion of an instruction on 

an “MMPA defense” with respect to the lesser included charge of misdemeanor simple 

possession of marijuana shows that the court’s decision not to give the MMPA defense as 

to the greater charges was “illogical.” The court, however, did not give an MMPA 

defense as to the simple possession charge; rather it gave an instruction that under the 

Compassionate Use Act possession was lawful under certain circumstances. 
17

Health and Safety Code section 11366 provides that it “‘shall be punished by 

imprisonment in county jail for [a period] not more than one year or state prison” (Health 

& Saf. Code, § 11366) and the Realignment Act did not apply to count 4. The trial court 

noted that since it had imposed state prison on count 4, the court’s understanding was that 

appellant was required to serve his sentence in state prison rather than local custody and 

therefore changed appellant’s sentence. 

B. Relevant Law

Section 654, subdivision (a) provides, “[a]n act or omission that is punishable in 

different ways by different provisions of law shall be punished under the provision that 

provides for the longest potential term of imprisonment, but in no case shall the act or 

omission be punished under more than one provision.” Thus, as the Supreme Court held 

“when a court determines that a conviction falls within the meaning of section 654, it is 

necessary to impose sentence but to stay the execution of the duplicative sentence.” 

(People v. Duff (2010) 50 Cal.4th 787, 796; People v. Hernandez (2005) 134 Cal.App.4th 

1232, 1238-1239 [if section 654 applies, the proper procedure is to impose a concurrent 

term and then stay it].) In other words, when section 654 applies, the trial court may 

impose only one sentence. (See Neal v. State of California (1960) 55 Cal.2d 11, 19.)

Here, the trial court stayed the concurrent sentences, including under count 4. 

That sentence, under Health and Safety Code section 11366, was not subject to the 

Realignment Act and required that appellant’s imprisonment be served in state prison 

rather than local custody. Under section 669, subdivision (d), “When a court imposes a 

concurrent term of imprisonment and imprisonment for one of the crimes is required to 

be served in the state prison, the term for all crimes shall be served in the state prison, 

even if the term for any other offense specifies imprisonment in a county jail pursuant to 

subdivision (h) of Section 1170.” The parties dispute whether this section requires 

appellant’s imprisonment—for four years on count 1, a Health and Safety Code section 

11360, subdivision (a) offense that is subject to the Realignment Act—be served in state 

prison, rather than county jail. We hold that it does not. 
18

Section 669, subdivision (d) provides concurrent terms of imprisonment “shall be 

served in the state prison.” In appellant’s case, the term for count 4 is stayed under 

section 654 and will not be served unless the stay is removed. “‘It has long been 

established that the imposition of concurrent sentences is precluded by section 654 

[citations] because [under such a sentence] the defendant is deemed to be subjected to the 

term of both sentences although they are served simultaneously.’” (People v. Duff, 

supra, 50 Cal.4th at p. 796.) If section 654’s prohibition against duplicative punishment 

is to be effectuated, we do not believe appellant can be subjected to the state prison 

requirement stayed in count 4, in addition to the punishment imposed under count 1.

IV. Removal of Standby Counsel Claim

Finally, appellant contends that the trial court abused its discretion when it 

relieved standby counsel for what he characterizes as a “minor transgression” prior to the 

jury being instructed and that the error was prejudicial at sentencing and resentencing. 

We find no abuse of discretion.

A. Relevant Trial Court Proceedings

Appellant elected to forgo the assistance of counsel and to represent himself at 

trial in the trial court. Specifically at an October 7, 2013 hearing prior to trial, appellant 

was represented by Gary Symonds who sought a continuance because he was scheduled 

to start another trial; however, when the court asked appellant if he would agree to a 

continuance, appellant stated he wanted to proceed in propria persona and did not want 

Symonds to represent him. After a break to allow appellant to review and sign the 

Faretta waiver with the assistance of a translator, the court conducted a colloquy during 

which, inter alia, the court explained—and appellant stated he understood—that appellant 

“would not be able to have co-counsel.” “So you can talk to whomever you want to on 

your [own] time. But when you are before the court, you’ll be the only one sitting there 

acting as you own attorney. You won’t be able to have any type of assistance other than 

someone who substitutes in for all purposes sitting in with you. There’s no advisory 

counsel allowed to remain at counsel table with you.” Symonds was present for the 
19

entire colloquy. Appellant’s Farretta motion was granted and Symonds was relieved as 

counsel.15 

On October 24, 2013, after the trial court excluded appellant’s evidence of his 

retention of an attorney to help him establish his marijuana dispensary, reasoning that the 

attorney’s statements were hearsay and the documents were irrelevant as certain 

requirements must be met to qualify under the MMPA, Symonds—who was now serving 

as appellant’s standby counsel—asked the court to be heard. The trial court responded, 

“you’re stand-by counsel. You don’t have standing to be heard. So please have a seat.” 

The next day, on October 25, 2013, during a discussion outside the presence of the 

jury between the court, the prosecutor and appellant about jury instructions, Symonds 

offered, “as stand-by counsel, maybe I can go over these and assist him.” The court 

responded that it appreciated that Symonds was trying to be of assistance, “but, again, 

you’re not representing the defendant. You’re merely here as stand-by. I’m not going to 

order you not to talk to the defendant, but it’s entirely up to the defendant whether he 

talks to you or not. But you really should not be giving him any advice.” 

Later, in the afternoon on October 25, 2013, after the close of evidence, the trial 

judge paused the proceedings and briefly left the courtroom to print the jury instructions 

to read. When the judge returned to the bench, the prosecutor asked to speak to the court 

outside the presence of the jury. After the jury exited, the prosecutor informed the court 

that while the judge was out of the room, Symonds leaned over the bar and told the 

interpreter to tell appellant to ask for special instructions. The prosecutor went on to say 

that “stand-by counsel may have any conversation he chooses to have with [appellant]. 

15 On October 7, 2013, after Robert Nadler was appointed as standby counsel, the 

court informed appellant that “you cannot consult in any way with Mr. Nadler. He 

cannot give you any legal advice. He cannot answer any questions for you. He will sit 

quiet throughout the proceedings until such time, if ever, you have elected to have him 

appointed.” At an October 9, 2013 hearing on pre-trial motions, appellant asked to 

“consult” with standby counsel, and the court responded, “You cannot. You waived your 

right to have an attorney. [¶] Mr. Nadler is only here as stand-by counsel. Now, if you 

want to relinquish your pro per status, . . . Mr. Nadler can step in and be your attorney.” 

Appellant declined to do so. 
20

However, he is not engaged by this court as an assisting counsel, and the People believe it 

is inappropriate in his capacity as stand-by counsel to make such a verbal display with the 

[appellant] through the interpreter while the court is away from the bench.” 

The court responded, “Well, in light of that, Mr. Symonds, you’re relieved. Thank 

you very much for your services.” The court then proceeded to rule on jury instruction 

and to instruct the jury. 

At sentencing on November 22, 2013, the trial court indicated that its tentative 

decision was to sentence appellant to a midterm sentence of three years on count 1, but 

after argument from appellant and the prosecution,16 sentenced appellant to the upper 

term of four years on count 1 based on two aggravating factors.17 

B. Relevant Law

As appellant correctly states, the United States Constitution guarantees the right of 

self-representation and the right to assistance of counsel (Faretta v. California (1975) 

422 U.S. 806, 834), but a defendant “has no right, under either the federal or state 

Constitution, to ‘hybrid representation.’ Criminal defendants have the constitutional right 

to have an attorney represent them, and the right under the federal Constitution to 

represent themselves, but these rights are mutually exclusive.” (People v. Moore (2011) 

51 Cal.4th 1104, 1119-1120, fn. omitted; Brookner v. Superior Court (1998) 64 

Cal.App.4th 1390, 1394 [“It seems to us that a defendant either has an attorney or he is 

his own attorney–period”].) Likewise, appellant correctly concedes that California law 

distinguishes between the roles of standby and advisory counsel: “‘Standby counsel’ is 

an attorney appointed for the benefit of the court whose responsibility is to step in and 

16 Appellant in essence accused that the court, as well as the prosecutor and 

Deputy Owen, of “breaking the law” and causing “huge damage[s]” for the loss of his 

house and property he said was worth “hundred thousand of dollars.” The prosecution 

argued for a longer sentence, noting that the court was showing compassion in its 

tentative decision but that such compassion was unwarranted given appellant’s aggressive 

behavior and inflammatory accusations. 

17 The court noted the manner in which the crime was carried out indicated 

planning, sophistication or professionalism and it involved a large quantity of contraband. 
21

represent the defendant if that should become necessary because, for example, the 

defendant’s in propria persona status is revoked. [Citations.] ‘Advisory counsel’ by 

contrast, is appointed to assist the self-represented defendant if and when the defendant 

requests help.” (People v. Blair (2005) 36 Cal.4th 686, 725, disapproved on another 

point in People v. Black (2014) 58 Cal.4th 912, 919-920.) 

Nonetheless, appellant argues that the trial court abused its discretion by 

dismissing Symonds based on “this single minor transgression” and should have simply 

warned Symonds not to attempt to communicate with appellant through the translator, 

thus protecting “appellant’s long-standing grant of stand by counsel.” This error, 

appellant argues, was prejudicial because he could not confer with standby counsel prior 

to sentencing. But as discussed, standby counsel is appointed for the benefit of the trial 

court, not to assist appellant as an advisory counsel would. (See People v. Clark (1992) 3 

Cal.4th 41, 149 [“The court was not required to appoint advisory counsel to assist 

defendant. [Citation.] Rather, the court appointed . . . standby counsel for the benefit of 

the court in case it became necessary for counsel to step in and complete the trial”].) 

Thus, there would have been no right to confer with or receive advice from standby 

counsel at the sentencing hearing or at any other point in the proceedings. Moreover, the 

record shows that Symonds had been put on notice on at least two other occasions that he 

was there as standby counsel only and was not appointed as advisory counsel. In this 

context, we find no abuse of discretion.18 

18 Appellant suggests that he could have elected to relinquish his in propria 

persona status at sentencing but the trial court “did not make him aware of this option.” 

The court, however, informed appellant on two occasions when appellant attempted to 

seek advice from standby counsel that standby counsel could not assist appellant but 

could step-in as his attorney if appellant elected to relinquish his pro. per. status. In 

addition, at his Farretta hearing, the court told appellant that if he “decide[d] sometime 

down the line to re-accept an attorney represent you, the court will not allow any 

continuances . . .” and that if appellant “asked for an attorney sometime down the line, 

the court may deny this request and order to you to proceed without an attorney.” Thus, 

appellant had been made aware that he could request re-appointment of counsel. 

Moreover, it is not as clear as appellant’s suggestion on appeal that, if Symonds had not 

been removed as standby counsel, appellant would have requested Symonds’ re-
22

DISPOSITION

The judgment is affirmed in part and reversed in part. The case is remanded for 

resentencing consistent with this opinion. We direct the clerk of the superior court to 

issue an amended abstract of judgment reflecting the resentencing and to forward a copy 

of the amended abstract of judgment to the Department of Corrections and Rehabilitation. 

In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED.

CHANEY, Acting P. J.

We concur:

JOHNSON, J.

MOOR, J.*

 

appointment given appellant’s apparent low opinion of counsel, including telling the trial 

court at his December 24, 2013 sentencing, “My first lawyer was high on heroine [sic], 

and you appointed him, and you wanted him to assist me, and he soiled his pants.” 

*

Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant 

to article VI, section 6 of the California Constitution.