Friday, September 14, 2018
Court of Appeal:
Marijuana Transportation Conviction Cannot Stand Because Later-Enacted Element Was Not Shown
By a MetNews Staff Writer
The Third District Court of Appeal has reversed the conviction of a man who was carrying more than 50 lbs. of marijuana in a U-Haul truck, saying that its action is required in light of the relevant statute having been subsequently amended to require an intent to sell, and the jury having made no such finding.
A 2015 amendment to Health & Safety Code §11360(a), rendering transportation of marijuana a felony, added that “ ‘transport’ means to transport for sale.” The People conceded that, although the amendment did not go into effect until Jan. 1, 2016, the statutory change was retroactive.
Although it therefore applied to the 2015 conviction of appellant Myk Caruana, which was not yet final when the amendment took effect, the People argued that the trial court’s omission of an instruction on intent to sell was harmless error in light of the evidence.
In an unpublished opinion filed Wednesday, Acting Presiding Justice Coleman Blease said:
“To sustain Caruana’s conviction, we must conclude beyond a reasonable doubt that the intent to sell element was uncontested and supported by overwhelming evidence….This we cannot do.”
There was evidence, Blease said, that Caruana intended to donate the marijuana to All American Cannabis Club, a medical marijuana collective in San Jose, with about 14,000 members. He added that there was no evidence found by officers of items such as “sales ledgers, packing materials, scales, or other indicia of sales.”
The jurist continued:
“While there is evidence that Caruana had been compensated for other marijuana and marijuana-infused products, it does not follow that he intended to sell the marijuana found in the U-Haul. Having reviewed the record in its entirety, we cannot confidently say that the verdict would have been the same had the jury been instructed on the intent to sell element. Accordingly, Caruana’s conviction must be reversed and the matter remanded for potential retrial.”
The case is People v. Caruana, C079455.
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