1

Filed 11/26/13 P. v. Mearns CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(El Dorado)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT BROWN MEARNS,

Defendant and Appellant.

C072920

(Super. Ct. No. P11CRF0557)

A jury found defendant Robert Brown Mearns guilty of possessing marijuana for 

sale and transporting marijuana; it acquitted him of possessing concentrated cannabis. 

Defendant subsequently admitted a recidivist allegation. Denying defendant’s request to 

exercise its discretion to strike the recidivist finding, the trial court sentenced defendant to

six years in state prison. 

On appeal, defendant argues the trial court erred in admitting evidence that he had 

a prior felony conviction. He also contends the trial court erred in failing to instruct the 

jury, in connection with possession for sale, that he had the right to reimbursement of his 

out-of-pocket expenses incurred as a primary caregiver of qualified medical marijuana 
2

patients. He claims trial counsel provided ineffective assistance in failing to ask the trial 

court to reconsider its tentative ruling restricting the scope of the testimony of a defense 

witness. Finally, defendant asserts the trial court abused its discretion in declining to 

strike the recidivist finding. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Prosecution case

In October 2011, a game warden was checking for after-hours hunters at about 

7:00 p.m. He received a report about a car parked at a gate of a nearby private ranch, 

which was posted for no hunting or trespassing. When he arrived at the car, he observed 

a flashlight coming down the path and could discern the figures of two men coming 

toward him. 

When they reached him, the warden asked for identification. One was defendant. 

They said they had been walking on the property, and denied having any firearms. 

Defendant acknowledged being the owner of the car. The game warden asked if he could 

inspect the car for firearms; defendant assented. As the game warden approached the car, 

he could detect a strong smell of unburned marijuana and asked defendant if he had any 

on his person or in the car. Defendant mentioned smoking marijuana earlier in the day, 

and began to search through paperwork inside the car. At this point, the game warden 

noticed the handle of what he thought was a handgun inside defendant’s sweatshirt. 

Securing it, the game warden found it was a replica that was actually a pellet gun. 

The game warden asked to search the trunk. Defendant first asserted the lock was 

broken, but then opened it with a key. The game warden had to handcuff defendant to 

prevent him from interfering with the search. Inside the trunk was a large garbage bag 

filled with pound-size packages of marijuana, and a briefcase. The briefcase contained 

smaller quantities of marijuana with various indicia of sales, including daily “menus” of 

types and prices of marijuana (one of them dated that day); at the bottom of the menu was 
3

the notation that “Larger quantities available at amazingly low prices.” There was also a 

list of medications for “Sam,” and expired and current medical marijuana physician 

recommendations for defendant that limited him to five pounds or 50 plants. The total 

amount of marijuana seized was almost eight pounds, along with 7.1 grams of 

concentrated cannabis. 

Defendant told the game warden that he worked at a dispensary in Sacramento. 

He did not mention anything about being a primary caretaker for qualified medical 

marijuana patients. He said he had a “215” card,1 because he had various medical issues 

(mentioning cancer). The marijuana in the trunk represented his life savings, which he 

was afraid to leave at home because he was concerned his roommates would steal it, and 

he asked if he could be released with a warning. The game warden arrested him. On his 

person, defendant had nearly $450, mostly in $20’s, and a check for $40. 

A narcotics detective testified as a prosecution expert. He reviewed the game 

warden’s arrest report. Based on those facts, he believed defendant possessed the 

marijuana for sale, particularly because defendant had been evasive about the presence of 

the contraband and described it as his life savings. The presence of various sizes of 

packaged marijuana, a scale, empty packaging, price lists, and a large amount of cash on 

defendant’s person were also indicia of sales. He also noted people who possess 

contraband “in general” carry real or replica weapons to protect it. Eight pounds is also 

four times the amount typical of personal use. 

Defense case

Defendant testified. He had been unemployed since mid-2011. He spent $4,000 

from a retirement account to grow 50 plants, harvesting the crop in September 2011. He 

 

1 This is the proposition number (Prop. 215) of the successful Compassionate Use Act of 

1996 (CUA) authorizing the use of medicinal marijuana. (Health & Saf. Code, 

§ 11362.5; undesignated statutory references are to this code.) 
4

did most of the trimming himself, but also paid “several” people about 45 cents per gram 

to assist. The marijuana in his trunk was “mostly” his crop, which he supplemented with 

other varieties from dispensaries. He had been using marijuana for about seven years to 

relieve chronic pain that was the result of several serious accidents, to elevate his mood, 

and to sleep better. He intended to use most of the marijuana personally, and to sell some 

of it to four individuals who are qualified medical marijuana patients with whom 

defendant had written agreements to be their primary caregiver. In this role, he also 

provided meals, transportation, clothing, small loans, and (at times) housing.2 (Sam, 

whose medication list was in defendant’s briefcase, was one of these patients.) 

Defendant drafted the “menus” to facilitate the process of familiarizing these qualified 

patients with his inventory. 

Defendant claimed to have been hiking on the property with the permission of its 

owner. There had been a series of burglaries of marijuana at his home, so he had put it in 

the car to protect it. He brought along the cash for the same reason (and in case his 1991 

car broke down). The check was a repayment of a loan, and did not involve a marijuana 

purchase. He had the pellet gun to protect himself during the hike from mountain lions or 

people, not the marijuana. In connection with the pellet gun, he admitted that he had a 

1988 felony conviction, which is why he was carrying a pellet gun rather than a firearm. 

(The court limited the jury’s consideration of the prior conviction specifically to this 

explanation.) He did not have cancer, but may have told the game warden that he 

believed marijuana would help protect him from his extensive family history of cancer. 

 

2 The four patients also testified, confirming the arrangements with defendant. At 

the end of trial, the parties stipulated that defendant was the caregiver for four qualified 

patients (as well as being a qualified patient himself), for which reason we do not need to 

elaborate the details of the testimony on the subject further. 
5

Based on his estimate of $4,000 in growing costs, defendant agreed the out-ofpocket cost per pound was $500, but queried, “Doesn’t my time count for anything?” He 

also testified that once his costs of providing transportation in connection with the 

qualified patients were taken into account, he did not think he was realizing any profit on 

the sales, even though he conceded that selling the marijuana for $25 per one-eighth of an 

ounce would amount to $3,200 per pound. This was all hypothetical in any event 

because he never sold any of the marijuana before its confiscation. 

DISCUSSION

I. Testimony About the Prior Conviction Was Not Prejudicial 

The trial court excluded use of defendant’s 1988 felony molestation conviction for 

purposes of impeachment because it was too remote. After the testimony of the game 

warden about finding the pellet gun, and the testimony of the expert that carrying a pellet 

gun was consistent with the general practice of sellers of contraband to carry weapons to 

protect their wares, the prosecution asked at bench to be allowed to ask defendant about 

the prior conviction to the end of showing (in essence) that a pellet gun was the best 

defendant could do in terms of arming himself without violating the law as a convicted 

felon. The trial court agreed, as long as the prosecutor “sanitized” the query about the 

conviction. 

Defendant asserts that the reason he carried a pellet gun instead of a firearm was 

irrelevant to any issue at trial, as opposed to the reason he brought it. Trumpeting the 

prejudice inherent in evidence of a prior conviction, defendant asserts this was “a close 

case” and we must reverse as a result, because the limiting instruction could not have 

been effective under these circumstances.3 

 

3 The latter contention—that the limiting instruction was ineffective—is an extremely 

dubious proposition. (Richardson v. Marsh (1987) 481 U.S. 200, 211 [95 L.Ed.2d 176]; 
6

Although we tend to agree that the evidence of the prior conviction was irrelevant 

to any material issue at trial, we conclude it was manifestly harmless. Prejudice in the 

context of erroneously admitted evidence is the “intolerable risk to the fairness of the 

proceedings” (People v. Booker (2011) 51 Cal.4th 141, 188) that the evidence will rouse 

the emotions of a jury and result in a verdict based not on logical evaluation of an issue 

but on a desire to punish a defendant (People v. Doolin (2009) 45 Cal.4th 390, 439). We 

do not find a 24-year-old unspecified felony conviction to be in that category. Had the 

exposure to information about defendant’s past conviction in fact aroused a desire in the 

jury to punish him, it would not have acquitted him of possessing concentrated cannabis, 

given the uncontroverted evidence of defendant’s guilt on that count. We therefore reject 

this argument. 

II. “Reimbursement” Defense Instruction Not Warranted

In connection with the pattern instruction on the elements of possession for sale of 

marijuana, defense counsel proposed the following addition: “Under the Compassionate 

Use Act [(CUA)],[4] a primary caregiver who consistently grows and supplies physicianapproved . . . medicinal marijuana for qualified patients is serving the health needs of 

those patients, and may seek reimbursement for such services. Such reimbursement must 

be for out-of-pocket expenses incurred in providing those services. Assuming 

responsibility for housing, health, or safety of . . . patients does not preclude a primary 

caregiver from charging . . . patient[s] for those services. [¶] If you have a reasonable 

 

Francis v. Franklin (1985) 471 U.S. 307, 324, fn. 9 [85 L.Ed.2d 344]; Parker v. Randolph

(1979) 442 U.S. 62, 74-75 & fn. 7 [60 L.Ed.2d 713] (plur. opn. of Rehnquist, J.); People v. 

Gonzales and Soliz (2011) 52 Cal.4th 254, 292; People v. Anderson (1987) 43 Cal.3d 1104, 

1120-1121.) However, we do not need to consider its merits.

4 Actually, it is the Medical Marijuana Program Act (MMP Act; § 11362.7 et seq.) from 

which this defense derives, as we will discuss.
7

doubt about w[h]ether defendant’s possession of marijuana for sale was unlawful under 

the [CUA], you must find the defendant not guilty.” 

The court noted, “there’s been testimony that he has sold marijuana. There’s 

testimony that he has provided transportation, he’s provided food, and he’s provided 

housing, but no testimony at all as to what the value of any of these things are.” The 

court also expressed its reluctance to modify pattern instructions because “it[] come[s] 

back in [a court’s] lap” with an admonition not to modify them. The court ultimately 

concluded “there is no evidence that has been presented to this jury that [defendant] was 

simply seeking reimbursement for his expenses,” and it would be inappropriate for 

defense counsel to make that argument because “[t]here’s no evidence of that that was 

presented to the jury. You’re asking this jury to speculate on the facts, and they clearly 

can’t do that.” Later, when the jury asked whether the CUA (to adhere to the misnomer) 

applied only to the charge of transportation or whether it applied to possession for sale as 

well, the trial court (after hearing argument from counsel) told the jury explicitly that the 

CUA did not apply to possession for sale. 

Defendant contends the trial court should have instructed the jury generally that 

the MMP Act applied to the charge of possession for sale, and specifically that he could 

not be found guilty of possession for sale if he was a primary caregiver being reimbursed 

for actual expenses (which include reasonable compensation for services provided to a 

qualified patient to enable the use of marijuana, or out-of-pocket expenses incurred in 

providing the services).5 (§ 11362.765, subd. (c); see People ex rel. Trutanich v. Joseph

 

5 Although defendant suggests this defense should also apply to the charge of 

transportation, he does not explain how the defense of a right to receive reimbursement 

would add anything to the instruction on his defense under subdivision (b)(2) of section 

11362.765 of the MMP Act, which told the jury “transportation of marijuana is lawful if 

authorized by the [CUA] [sic]. The [CUA] [sic] allows a person to . . . transport 

marijuana (for personal medical purposes or as the primary caregiver of a patient with a 

medical need) . . . .” (See fn. 4, ante.) The jury was not instructed that defendant was 
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(2012) 204 Cal.App.4th 1512, 1523 [noting defense, but finding it inapplicable]; People 

v. Hochanadel (2009) 176 Cal.App.4th 997, 1011 [noting guidelines from the Attorney 

General that allow collectives to receive monetary reimbursement in an amount necessary 

to cover overhead costs and expenses]; People v. Urziceanu (2005) 132 Cal.App.4th 747, 

784-785 [sufficient evidence in support of this defense to warrant remand for new trial].) 

He asserts the evidence we have included above was sufficient to warrant an instruction 

on this defense. 

We agree with the trial court. Even assuming evidence of other expenses incurred 

as a primary caregiver can be included in the “overhead” of the price of the marijuana, 

there is a paucity of evidence of defendant’s actual costs (as opposed to his testimony

about the various categories of costs) other than his specification of $4,000 in costs to 

grow his crop, or how these actual costs compared with his intended sales prices—which, 

even at $25 per eighth-ounce, would yield $3,200 in revenue for each of the eight pounds. 

It is thus pure speculation that defendant’s reasonable compensation for services and outof-pocket expenses would equal over $25,000. The trial court accordingly was correct in 

declining to instruct on this theory in connection with possession for sale.6 (People v. 

 

charged in the second count with selling the marijuana, only with transporting it (or 

giving it away). Indeed, defendant may have received a windfall in this regard. (People 

v. Wayman (2010) 189 Cal.App.4th 215, 223 [defense limited to transporting marijuana 

for current medical needs; “it is quite another [thing] to say that qualified users have an 

unfettered right to take their marijuana with them wherever they go”].) Presumably, this 

holding extends to caregivers driving around with marijuana in excess of a qualified 

patient’s needs. 

6 After focusing entirely on subdivision (c) of section 11362.765 as the basis for the trial 

court’s duty to instruct (as he did in the trial court), defendant belatedly asserts in his 

reply brief that he also is entitled to an instruction pursuant to subdivision (b), in response 

to the People’s unexplained inclusion of subdivision (b) in their analysis. It is too late to 

raise this as an alternate basis for the trial court’s duty to instruct. In any event, as we 

note, the jury necessarily concluded in connection with the transportation count that he 

was not acting as a primary caregiver or making personal medical use of the marijuana, 

so the error is still harmless. 
9

Watson (2000) 22 Cal.4th 220, 222 [must be substantial evidence to support defense in 

order to entitle defendant to instruction].) 

In any event, the failure to grant defendant’s request for the instruction is harmless 

because the jury necessarily resolved the issue adversely to him under proper instructions 

in finding him guilty of transportation. (People v. Wright (2006) 40 Cal.4th 81, 98.) As 

mentioned in footnote 5, ante, if the jury believed defendant was acting as a caregiver of 

qualified patients (or in connection with his own medical needs), it was instructed that 

this transportation was lawful. As part of the evidence under consideration, the jury had 

before it the stipulation to the status of defendant as caregiver and the four young men as 

qualified patients. Therefore, the jury necessarily rejected defendant’s claim that he was 

acting exclusively in that capacity in transporting the marijuana, and would not have any 

factual basis for coming to a different conclusion in connection with possession for sale. 

Defendant’s cavalier claim that the jury disregarded this instruction in favor of the 

prosecutor’s argument (that even if a primary caregiver, defendant was still guilty of 

transportation), even if an accurate characterization of that argument, runs afoul of the 

authority cited in footnote 3, ante. We therefore reject his claim of reversible error.

III. Defendant Cannot Establish Ineffective Assistance

of Counsel on Direct Appeal

At the conclusion of a foundational hearing on the proposed testimony of a wellknown defense expert witness,7 the trial court ruled that his areas of expert testimony be 

limited to yield and cultivation, but it agreed to revisit its ruling in light of the testimony 

of the prosecution expert to determine whether other areas of testimony became relevant 

 

7 Christopher Conrad has testified in proceedings in People v. Kelly (2010) 47 Cal.4th 

1008, 1020 and People v. Hughes (2012) 202 Cal.App.4th 1473, 1476 (as well as in 

several no longer officially published opinions, People v. Archer (Nov. 17, 2009, 

D052978), People v. Phomphakdy (July 31, 2008, C056881), and People v. Arbacauskas

(Oct. 25, 2004, C044110)). 
10

as a result. At that time, defense counsel noted the need for the defense expert was tied to 

the substance of the prosecution expert’s testimony. Defense counsel never sought to 

revisit the ruling, nor called Conrad as a witness. 

Defendant contends the trial court’s ruling was erroneous. In defendant’s view, 

Conrad’s expertise would have been invaluable on “numerous” questions, and thus trial 

counsel could not have had any “proper, justifiable tactical reason” for not revisiting the 

issue of the limitations on the testimony after the testimony of the prosecution expert. As 

a result, defendant asserts that trial counsel was ineffective. 

Under the first element of a claim of ineffective assistance, a defendant must 

demonstrate that trial counsel's omission fell below a standard of reasonableness under 

prevailing professional norms. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) On a silent 

record, we will not find a breach of professional standards unless a reasonable attorney 

would not have failed to act. (People v. Pope (1979) 23 Cal.3d 412, 426.) “Whether to 

call certain witnesses is . . . a matter of trial tactics, unless the decision results from 

unreasonable failure to investigate.” (People v. Bolin (1998) 18 Cal.4th 297, 334.)

Defendant fails to refute this presumption of a reasonable tactical decision in the 

present case. The prosecution expert rested his opinion in part on defendant’s evasive 

conduct during his encounter with the game warden, which is not a subject to which the 

defense expert could be responsive in any fashion. Nor would the defense expert have 

anything to contribute on the subject of whether sellers of contraband arm themselves. 

This leaves the question of whether the quantities and other indicia indicated defendant 

was selling the marijuana rather than serving only the needs of his qualified patients. But 

defendant did not dispute that he was selling marijuana; his explanation was that the price

was simply recouping expenses from his qualified patients. The defense expert could not 

offer any opinion on that subject other than to corroborate defendant’s recoupment claim 

as being consistent with industry practice. Therefore, trial counsel reasonably could have 
11

concluded (after hearing the prosecution expert and determining that defendant would 

testify) that ultimately the defense would not even need expert testimony because he 

believed his client’s testimony of itself would be persuasive, so there would not be any 

point in asking the court to reconsider its ruling. We therefore reject this claim. (As a 

result, we do not need to address defendant’s arguments that the trial court’s ruling was 

erroneous.) 

IV. No Abuse of Discretion in Declining to Strike Recidivist Finding

Before sentencing, defense counsel filed a “Romero motion”

8 to dismiss the 

recidivist finding. It discussed the circumstances of defendant’s prior conviction: Over a 

two-year period, defendant plied a boy (12 to 13 years old) with alcohol, marijuana, and 

pornography in order to induce him into mutual masturbation and allowing defendant to 

fellate him on a weekly basis. He may have also molested a 14-year-old boy after 

providing him with enough alcohol to pass out. These boys were two of a larger group 

with whom defendant provided alcohol, marijuana, and pornography. It also noted that 

he was paroled in 1991, discharged from parole in 1994 without any violations, and had 

not incurred any other arrests or convictions before the present offense. Finally, it 

pointed out that defendant had good job prospects and had been a productive member of 

society. It asserted defendant had been acting under a good faith belief in the legality of 

his present conduct under the CUA and MMP Act, continuing to claim that there was an 

absence of any evidence that defendant sought to profit from his sales of marijuana. The 

 

8 This is an irksome popular misnomer. People v. Superior Court (Romero) (1996) 

13 Cal.4th 497, 530 held that the trial court has the power (under Pen. Code, § 1385) sua 

sponte (or on motion of the prosecution) to dismiss a recidivist finding in the interests of 

justice (a specific qualification echoed in later decisions). A defendant therefore invites

the trial court to exercise its power sua sponte, but cannot move the court to act sua 

sponte. (People v. Carmony (2004) 33 Cal.4th 367, 375-376 (Carmony) [may “invite,” 

which obligates court to review any proffered evidence, and allows appellate review].) 
12

filing mentioned the absence of any aggravating factors in the present offense, including 

the quantity of marijuana (given that he was authorized to possess up to five pounds for 

personal use). 

The trial court, which had not previously encountered a Romero request, “spent a 

lot of time going over this.” After entertaining the argument of counsel, the court made a 

thoughtful ruling. It was concerned with defendant’s associating with young men in their 

early 20’s, providing them with marijuana, and allowing them to stay in his home. It was 

also concerned that in a burglary defendant reported in 2008, two of the witnesses were 

boys (about 14 and 15 years old) who were staying over at defendant’s house to use his 

computer. It found defendant to have been less than candid in the present case, having 

failed to mention the existence of qualified patients to the game warden and having lied 

to the warden about recently smoked marijuana being the source of the smell, the lack of 

a key to the trunk, and being employed at a marijuana dispensary. The trial court found 

this willingness to deceive undercut other evidence of defendant’s good character. It 

believed the evidence at trial clearly indicated defendant intended to sell marijuana for 

profit regardless of whether he had qualified patients, both from the indicia of sales and 

the evidence that his monthly expenses were greatly in excess of his stated income. 

Reaching the conclusion that defendant was not in any respect remorseful because he was 

not willing to accept the illegality of his conduct (regardless of his willingness and ability 

to comply with terms of probation), the court declined to exercise its power to strike the 

recidivist finding. 

A trial court may exercise its discretion to strike a recidivist finding if, and only 

if, a defendant can be “deemed outside the . . . spirit” of the statute, giving “preponderant 

weight” to inherent statutory factors (such as the background, character, and prospects of 

a defendant, as well as the nature and circumstances of the present and previous felony 
13

convictions) and ignoring any factors extrinsic to the statute. (People v. Williams (1998) 

17 Cal.4th 148, 159, 161.) 

The burden is on defendant to demonstrate that the trial court’s decision was 

unreasonable, rather than being one of alternative reasonable readings of the facts before 

the court. This requires a defendant to overcome a “strong” presumption on appeal that a 

court’s denial of the request to exercise discretion is proper. (Carmony, supra, 33 Cal.4th 

at pp. 377, 378.) Only where the criteria undisputedly favor a defendant (i.e., where the 

facts essentially as a matter of law establish entitlement to relief) would the denial of a 

request to exercise its power to strike be an abuse of a court’s discretion. (Id. at p. 375.) 

Defendant takes the tack of reiterating the arguments he made in the trial court and 

declaring the result to be an abuse of discretion without any demonstration of the 

irrationality or arbitrary nature of the trial court’s exercise of its informed discretion. The 

remoteness of the prior conviction is but “a” factor, not a controlling factor. It is true 

defendant has not incurred arrests or convictions before the present offense, and would 

appear otherwise to be a productive member of society. We also agree that defendant’s 

provision of marijuana to men in their younger 20’s and allowing them to live in his 

home is neither criminal nor represents a threat to society, which undermines the court’s 

ruling in this single respect. 

On the other hand, that defendant as late as 2008 had boys in their teens staying 

over at his home—even if not illegal of itself and even if nothing untoward occurred—

raises flags about whether defendant’s law-abiding nature might be overcome by the near 

occasion of sin. As for defendant’s mendacity with the game warden, he attempts to 

justify it as a natural response to avoid inevitable arrest despite his self-professed belief in 

the legality of his conduct. However, both the jury and the trial court have determined 

that defendant was not acting solely in the role of a primary caregiver, and thus his 

dissemblings demonstrate his inability to conform his conduct to society’s dictates. It is 
14

immaterial that this transgression was not violent, or involved a quantity of marijuana 

“only” three pounds in excess of his recommendation. Society, in the person of the trial 

judge, is not compelled to define deviancy downward through the toleration of violations 

of even its lesser mandates. As the trial court’s resolution is not unreasonable, we reject 

defendant’s claim. 

DISPOSITION

The judgment is affirmed.

 BUTZ , Acting P. J.

We concur:

 MAURO , J.

 MURRAY , J.