State v. Valentin

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

JEFFREY STEVEN VALENTIN, Appellant.

No. 1 CA-CR 19-0083
FILED 7-7-2020

Appeal from the Superior Court in Maricopa County
No. CR2016-142954-001
CR2018-002135-001
The Honorable Joseph P. Mikitish, Judge

VACATED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael Valenzuela
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Rena P. Glitsos
Co-Counsel for Appellant

Thomas W. Dean Attorney at Law, Phoenix
By Thomas W. Dean
Co-Counsel for Appellant
 STATE v. VALENTIN
Decision of the Court

MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Kent E. Cattani joined.

C A M P B E L L, Judge:

¶1 Jeffrey Steven Valentin appeals his conviction for possession
of equipment or chemicals to manufacture a narcotic drug (cannabis). For
reasons that follow, we vacate Valentin’s conviction.

BACKGROUND

¶2 The relevant facts are uncontested. In September 2016, officers
executed search warrants at Valentin’s residence and another house that he
used as a marijuana grow house. Three other individuals also cultivated
marijuana at Valentin’s grow house. During the searches, officers found
large amounts of marijuana and cannabis, cash, and equipment and
chemicals used to produce cannabis from marijuana. Valentin was a
registered qualifying patient and a designated caregiver under the Arizona
Medical Marijuana Act (“AMMA”), as were the other three individuals
using the grow house.

¶3 The State charged Valentin with illegal control of an
enterprise, two counts of possession of marijuana for sale, two counts of
possession of a narcotic drug (cannabis) for sale, production of marijuana,
two counts of money laundering, manufacture of a narcotic drug
(cannabis), and possession of equipment or chemicals to manufacture a
narcotic drug (cannabis). At trial, Valentin contended he was immune from
prosecution under the AMMA. The superior court reserved the issue of
immunity until after the jury returned its verdicts. Following a 12-day trial,
the jury convicted Valentin of possession of equipment or chemicals for
manufacturing cannabis but acquitted him of all other charges, including
the lesser-included offenses of possession of marijuana and possession of
cannabis. Applying State v. Jones (“Jones I”), 245 Ariz. 46 (App. 2018), the
superior court ruled Valentin was not immune from prosecution for
possessing equipment or chemicals to produce cannabis because the
AMMA excluded cannabis. The court entered a judgment of conviction,

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suspended Valentin’s sentence, and imposed a three-year term of
supervised probation. Valentin timely appealed.

DISCUSSION

¶4 In State v. Jones (“Jones II”), 246 Ariz. 452, 455, ¶ 10 (2019),
issued after the judgment in this case, our supreme court overruled Jones I,
holding that the AMMA’s definition of marijuana includes cannabis and its
protections apply to cannabis-related crimes. As a preliminary matter, Jones
II applies to Valentin because his case is not final on direct appeal. State v.
Styers, 227 Ariz. 186, 187–88, ¶¶ 5–6 (2011). Valentin asks us to vacate his
conviction based on Jones II.

¶5 The State does not dispute that Jones II holds that the AMMA
immunizes valid and compliant AMMA cardholders from prosecution for
possession of equipment or chemicals to manufacture cannabis because it
is a lesser-included offense of the AMMA-protected offense of
manufacturing cannabis. 246 Ariz. at 455, ¶ 10 (stating that the AMMA
statutes “indicate the AMMA’s intent to allow the manufacture and
preparation of parts of the marijuana plant for medical use, including
extracting the resin [producing cannabis]”) (emphasis added). The State
contends, however, that this case should be remanded to determine
whether Valentin possessed an allowable amount of marijuana under the
AMMA to maintain his immunity. We review questions of law and
statutory interpretation de novo. State v. Neese, 239 Ariz. 84, 86, ¶ 8 (App.
2016).

¶6 “AMMA permits those who meet statutory conditions to use
medical marijuana.” Reed-Kaliher v. Hoggatt, 237 Ariz. 119, 122, ¶ 7 (2015).
“AMMA broadly immunizes qualified patients, carving out only narrow
exceptions . . . .” Id. at ¶ 8; see A.R.S. § 36-2811(B) (immunizing a registered
qualifying patient or a designated caregiver from prosecution if the patient
or caregiver does not possess more than the allowable amount of
marijuana). The “allowable amount” is “two and one-half ounces of usable
marijuana.” A.R.S. § 36-2801(1)(a)(i), (b)(i). “Usable marijuana” is defined
as “the dried flowers of the marijuana plant, and any mixture or
preparation thereof,” but does not include “seeds, stalks, and roots.” A.R.S.
§ 36-2801(17). In Jones II, our supreme court instructed that the allowable
amount of cannabis is based on the weight of the dried marijuana flowers
used to produce the cannabis, not the weight of the cannabis itself. 246 Ariz.
at 456, ¶¶ 14–15.

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¶7 “In claiming protection under [AMMA] statutory immunity,
it is a defendant’s burden to ‘plead and prove,’ by a preponderance of the
evidence, that his or her actions fell within the range of immune action.”
State v. Fields ex rel. Cnty. of Pima, 232 Ariz. 265, 269, ¶ 15 (App. 2013). A
registered qualifying patient or designated caregiver loses all immunity if
the patient possesses more than the allowable amount. Id. at ¶ 14. Immunity
is a question of law for the superior court. Id. at ¶ 15. “If the existence of
immunity turns on disputed factual issues, the jury determines the facts
and the court then determines whether those facts are sufficient to establish
immunity.” Id. (quotation omitted). Accordingly, when the quantity of
marijuana is at issue, the jury determines whether the amount is over the
threshold and the court then determines whether immunity applies.

¶8 At trial, the parties stipulated that Valentin possessed four
designated caregiver cards, three of which permitted cultivation, and a
registered qualifying patient card. This means under the AMMA, the
aggregate amount he was permitted to possess was 12.5 ounces of usable
marijuana. The three other individuals who grew marijuana at his grow
house possessed a total of 11 caregiver cards, all with permission to
cultivate and entitled to possess a quantity of marijuana as well. Before the
superior court could find whether Valentin was immune under the AMMA
following a conviction, the jury had to determine the amount of marijuana and
cannabis Valentin possessed. Id. To that end, the court’s instructions and
verdict forms directed the jurors that if they found Valentin guilty of the lesser-
included offenses of possession of marijuana or possession of cannabis, they
must then determine whether Valentin possessed “more than 12.5 ounces of
usable marijuana and/or cannabis” or less than that amount. Because the jurors
acquitted Valentin, they did not make the subsidiary factual determinations.

¶9 The State argues the jurors’ vote to acquit on the drug charges
established only that the State did not prove its case on those charges
beyond a reasonable doubt, and there is thus a question whether Valentin
can meet his burden of proving by a preponderance of the evidence that he
is immune from prosecution because the amount of drugs possessed was
below the allowable limit for AMMA cardholders. The State contends that
this factual finding must be made by the jury, and argues that the case must
be remanded for a new jury to make a finding regarding the amount of
drugs possessed.

¶10 To support its argument for a remand, the State relies solely
on Valentin’s testimony that a backpack found at his residence containing
marijuana and cannabis belonged to him. Valentin told the jury that the
backpack had ten to eleven ounces of marijuana in it, five of which were

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usable, and a few cannabis items. Based on Valentin’s admissions and
closing argument, the State argues that “the AMMA grants Valentin
immunity if the weight of the dried marijuana flowers plus the amount of
dried marijuana flowers used to make the cannabis products [from the
backpack] equaled less than 12.5 ounces.” The State asserts that the record
is “silent about the amount of dried marijuana flowers used to make the
cannabis products that Valentin admitted he possessed. The record is also
silent about exactly how much cannabis the police found in Valentin’s
backpack.”

¶11 The flaw in the State’s argument is that notwithstanding
Valentin’s testimony, the jury acquitted him of all marijuana and cannabis
charges. Although the jurors did not fill in the form requesting that they
determine the amount of marijuana and cannabis Valentin possessed, in
considering charges of possession of marijuana/cannabis for sale, the jurors
were instructed on the lesser-included offense of possession of
marijuana/cannabis, and were specifically instructed that if they found the
defendant guilty of the lesser-included offense, they were to indicate the
amount of drugs the defendant possessed. Thus, under the superior court’s
fact-finding procedure (to which the State did not object), the State failed to
prove Valentin possessed any quantity of marijuana/cannabis. Therefore, the
burden to establish immunity never shifted to Valentin, and neither the jury
nor the court had to make respective findings for the issue. See Fields, 232
Ariz. at 269, ¶ 15. Moreover, by finding Valentin not guilty of the lesser-
included possession offenses and leaving blank the amount-possessed line on
the verdict form, the jury essentially filled in the blank for the amount
possessed with the number “zero,” and it would be improper to have a new
jury revisit that question.

¶12 In sum, Jones II extends AMMA immunity to the statute of
conviction, and because the jury resolved all “disputed factual issues”
regarding Valentin’s possession of marijuana and cannabis fully in his favor
at trial, the “facts are sufficient to establish immunity.” Fields, 232 Ariz. at
269, ¶ 15. Accordingly, a remand is unnecessary to establish that Valentin
complied with the AMMA’s allowable amount threshold for a conviction
that contains no cannabis-possession element after he was acquitted on the
same evidence of all possession, sale, production, and manufacture charges
for both marijuana and cannabis.

¶13 Finally, a remand such as the State seeks would produce an
irrational result contrary to the AMMA’s intent to broadly immunize
qualified patients and caregivers: Valentin was acquitted of possessing the
cannabis in his backpack but, on remand, would have to prove his

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immunity for possessing the very same cannabis. See Reed-Kaliher, 237 Ariz.
at 122, ¶¶ 6–8; State v. Estrada, 201 Ariz. 247, 251, ¶ 16 (2001) (“[W]e interpret
and apply statutory language in a way that will avoid an untenable or
irrational result.”); State v. Seyrafi, 201 Ariz. 147, 150, ¶ 11 (App. 2001) (“We
apply practical, common sense constructions rather than hypertechnical
ones that would tend to frustrate legislative intent when we interpret
criminal statutes.”). It logically follows that a person must first be in
possession of an item before the measure of that item can be made. The State
may disagree with the jury’s verdict, but we are bound by it. Accordingly,
we find that Valentin was immune as a matter of law under the AMMA for
possessing equipment and chemicals dedicated to manufacturing cannabis.
See Jones II, 246 Ariz. at 455–57, ¶¶ 10, 16, 19.

CONCLUSION

¶14 For the foregoing reasons, we vacate Valentin’s conviction.

AMY M. WOOD • Clerk of the Court
FILED: AA

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