Medical Marijuana/Compassionate Use Act
Category > Medical Marijuana/Compassionate Use Act
Updated 2/7/2024After Prop 64, the possession of marijuana in prison is unlawful.While Health and Safety Code section 11362.1(a) partially decriminalized the possession of marijuana, it remains unlawful to possess the controlled substance in prison.id: 27208
Defendant was eligible for Prop 64 resentencing on the marijuana count even though he had other convictions for attempted murder in the same case.Defendant filed a Prop 64 petition in the superior court to reduce his felony possession of marijuana for sale conviction in the present case to a misdemeanor. The court found him ineligible because he was also convicted of four counts of attempted murder. However, a concurrent conviction for attempted murder in the same case in which the defendant was charged and convicted of possessing marijuana for sale does not render the defendant ineligible for resentencing on the marijuana count.id: 25707
The trial court erred in denying defendant an MMPA defense based on evidence that he sold medical marijuana for a profit.Defendant, a founding member of a medical marijuana collective was convicted of possessing marijuana for sale. The trial court precluded him from asserting a defense under the Medical Marijuana Program Act because there was evidence that he charged for the marijuana. However, there was no evidence that Herbal Run was a not-for profit organization and that he charged patients only to reimburse growers for their costs. Whether Herbal Run was operated for profit or not should have been determined by the jury.id: 23788
The trial court failed to instruct on defendant’s theory under the medical marijuana laws that members of the collective who grow marijuana can be paid by other members in exchange for marijuana.Defendant was convicted of cultivating marijuana. However, the trial court erred by failing to clearly instruct on the defense potentially available under Health and Safety Code section 11362.775, which legalizes the operations of coops and collectives for cultivating marijuana by groups of patients. Specifically, the instructions failed to clarify that a lawful cooperative or collective can consist of some patient members who grow marijuana and other patient members who compensate the growers with money in exchange for marijuana.id: 23942
The trial court erred by precluding defendant from presenting the affirmative defense that he was permitted to possess concentrated cannabis under the Compassionate Use Act.The trial court erred when it found that possession of concentrated cannabis is not covered by the Compassionate Use Act. The court violated the defendant’s Sixth Amendment right to present a defense by precluding him from presenting this affirmative defense. Moreover, since the trial court’s determination that defendant violated his probation was also premised on this erroneous finding, the evidence was insufficient to support that determination.id: 23950
The trial court erred by failing to instruct on the collective cultivation defense where two patients grow and share marijuana for medical reasons with no distribution to outsiders.Defendant was convicted of possessing and cultivating marijuana. However, the trial court prejudicially erred by refusing to instruct on the collective cultivation defense described in Health and Safety Code section 11362.775. The court rejected the defense based on the fact that defendant and his roommate who were growing it together had not formed a marijuana collective with the same indicia of formality. While indicia of a formally organized collective may be a relevant evidentiary factor for the jury to evaluate, it isn’t a mandatory requirement that precludes application of the defense to informal joint cultivation arrangements between two people who grow marijuana exclusively for their own medical use.id: 23955
Operator of a marijuana collective could present an MMPA defense even with large membership including many who did not participate in the cultivation process.Defendant charged with possession and sale of marijuana attempted to invoke the defense provided by the Medical Marijuana Program Act - Health and Safety Code section 11362.7. Contrary to the trial court’s ruling, the large membership of defendant’s collective, very few of whom participated in the actual cultivation process, did not, as a matter of law, prevent defendant from presenting an MMPA defense. However, an organization’s larger membership may be relevant to the question of whether it operates as a for-profit enterprise or is a nonprofit enterprise operated for the benefit of its members.id: 22936
Once the court found defendant was a qualified patient operating a “legitimate dispensary” the Medical Marijuana Program Act defense applied to the transportation charge. Defendant was stopped while transporting one pound of medical marijuana from one medical marijuana establishment to another, and was later convicted of transporting marijuana. The trial court found that although defendant was a qualified patient operating a “legitimate dispensary,” he was not entitled to the Medical Marijuana Program Act defense (Health and Safety Code section 11362.775) because the transportation had nothing to do with the cultivation process. However, based on the court’s finding, the defense applies and defendant was not required to show some united action or participation among all members of the cooperative.id: 22613
The trial court erred in instructing the jury regarding the numerical limitations of medical marijuana he could lawfully grow and/or cultivate. The trial court erred when it included the numerical limits described in Health and Safety Code section 11362.77(a) when instructing the jury regarding the amount of medical marijuana defendant could lawfully possess and/or cultivate because this provision of the Medical Marijuana Program Act unlawfully amends the Compassionate Use Act. The error was harmless in connection with the cultivating conviction under section 11358 because defendant admitted his was growing marijuana for four other people and it was unlawful to grow any amount of marijuana for others. The error was prejudicial as to the charge of simple possession under section 11357(a). id: 21111
The court erred in precluding defendant from presenting the Compassionate Use Act defense where he testified at the 402 hearing that his doctor told him marijuana might help his headaches.A physician gives his or her "approval" of a patient's marijuana use within the meaning of the Compassionate Use Act if the physician expresses to the patient a favorable opinion of marijuana use for treatment of the patient's illness. When a Compassionate Use Act defense is the subject of a pretrial Evidence Code section 402 hearing, the defendant need only produce evidence sufficient to raise a reasonable doubt on the element of the defense in question. Because defendant met the burden of showing he had the physician's approval to use marijuana, the trial court erred by precluding him from presenting the Compassionate Use Act defense to the jury.
id: 17580
Medical Marijuana Act applied retroactively to defendant charged with transporting marijuana.The Compassionate Use Act of 1996 applies retroactively to
cases pending at the time of its enactment. The trial court therefore erred in refusing to instruct under the act where the defendant presented sufficient evidence entitling him to the instruction as an affirmative defense to the charge of transporting marijuana. However, the instructional error
was harmless where the jury necessarily rejected the factual predicate - that defendant possessed, and by extension, transported the marijuana for his medicinal use, and found that he possessed it intending to sell it.id: 19350
Provision which prohibits bringing "drugs, other than controlled substances" into the jail does not apply to medical marijuana.Defendant was convicted of violating Penal Code section 4573.5, based on his bringing "medical marijuana" without authorization into a county correctional facility. Section 4573.5 prohibits bringing unauthorized "drugs, other than controlled substances" into a correctional facility. By its terms, section 4573.5 does not extend to medical marijuana.id: 19399
Medical marijuana provision provides a defense to probation revocation.A defendant may assert a medical marijuana defense pursuant to Health and Safety Code section 11362.5 as a defense to the criminal sanction of revocation where, as here, there was no claim that his conduct endangered others or that he diverted marijuana for nonmedical purposes. Moreover, the prosecution may not evade the provision on the ground that defendant violated a probation condition that he obey the federal criminal marijuana law. Since the federal law is given effect only by its incorporation in the state law as a probation condition, it is subject to the state law defense of section 11362.5.id: 17652
Court erred by instructing jury that defendant, seeking the medical marijuana use defense, need prove the underlying facts by a preponderance of the evidence.Health and Safety Code sections 11357 and 11358 make it a crime to possess and cultivate marijuana. Section 11362.5, subd.(d), enacted as part of the Compassionate Use Act in 1996, authorizes possession for personal medical purposes of a patient upon the written or oral approval of a physician. The defense may raise the issue of the limited immunity as a defense at trial or may move to dismiss the case pretrial on this basis. The burden of proof as to the facts underlying the section 11362.5, subd.(d) defense may, and should be, allocated to the defendant, but the defendant should be required merely to raise a reasonable doubt as to those facts rather than to prove them by a preponderance of the evidence. The trial court's instruction requiring defendant to prove the underlying facts by a preponderance of the evidence was reversible because it went to the heart of the case against defendant.id: 16890
Updated 2/26/2024Trial court erred in finding defendant’s accessory conviction did not qualify for Prop 64 relief where it was predicated on marijuana-related offenses. Prop 64 reduced or eliminated criminal penalties for various marijuana-related offenses and established a petitioning process for people seeking a sentence reduction based on the new law. Defendant was charged with possession of marijuana for sale and cultivation of marijuana, both felonies at the time, and later pled guilty to a single felony count of accessory. The trial court erred by finding defendant was ineligible for Prop 64 relief even though accessory is not a listed offense, given that the accessory conviction was predicated on crimes that were reduced to misdemeanors under Prop 64.id: 26248
Updated 2/26/2024Reliable hearsay is admissible to prove ineligibility for Prop 64 relief. Proposition 64 reduces or eliminates penalties for marijuana offenses. Reliable hearsay evidence in arrest and probation report is admissible to prove ineligibility for Prop 64 relief. id: 26393
Updated 2/26/2024Provision regarding possession of cannabis in prison remains a crime after Prop 64. Proposition 64 did not invalidate cannabis-related convictions under Penal Code section 4573.6, which makes it a felony to possess a controlled substance in a state correctional facility. id: 27487
Updated 2/23/2024Prop 64 did not decriminalize the possession of marijuana in a penal institution.Defendant was convicted of possession of marijuana in jail in violation of Penal Code section 4573.6 (a). Contrary to his argument, possession of marijuana in jail is still a crime after the passage of Prop 64. id: 26944
Prop 64 did not legalize the possession of marijuana in prison.Defendant pled guilty to the unauthorized possession of marijuana in prison under Penal Code section 4573.6. The voters thereafter enacted Proposition 64, which legalized the possession of not more than 28.5 grams of marijuana. Defendant then moved for relief, but the court found that Prop 64 did not legalize the possession of marijuana in prison.id: 26091
A local ordinance prohibiting dispensaries cannot bar a defendant from raising the state medical marijuana defense.Defendant who owned a medical marijuana business in Livermore, was convicted of possession of marijuana for sale, and transporting marijuana. Livermore had a municipal ordinance prohibiting marijuana dispensaries. The trial court erred by precluding him from raising the state medical marijuana defense based on Livermore’s local ban on dispensaries. The law does not permit local governments to abrogate the state law medical marijuana defense.id: 25781
Prop D, enacted in Los Angeles in 2013, prohibits the delivery of marijuana by vehicles. Proposition D, which city voters enacted on 2013 to regulate medical marijuana businesses, generally prohibits the delivery of marijuana by vehicles. The city has therefore shown it is likely to succeed in a suit against the defendants in an aiding and abetting theory.id: 24582
A police officer qualified as an expert in drug sales need not also qualify as a medical marijuana expert where the defendant raises the compassionate use defense.A police officer need not qualify as a medical marijuana expert in order to render an opinion that marijuana being possessed is possessed for sales in cases where the defendant raises an affirmative defense under the Compassionate Use Act.id: 21504
Defendant, a large grower and marijuana supplier for a for-profit corporation acting as a collective was not entitled to immunity under the Medical Marijuana Program Act.Defendant was convicted of marijuana cultivation under Health and Safety Code section 11358. He argued that he was entitled to the protection of section 11362.775. He had entered into agreements to grow marijuana and sell it to a for-profit corporation that operated a collective of which he was a member. He admitted that he expected to make over $50,000 in profits from his operation but that amount went beyond the protections of the Medical Marijuana Program Act (section 11362.775). And he did not meet the definition of a “caregiver.” He was not entitled to the immunity provided by the MMPA because the quantity of marijuana he grew was greater than he could claim as personal use. id: 23749
The search warrant affidavit established probable cause to search even though there was no showing on the issue of whether the marijuana he possessed was for medical use. Defendant argued the affidavit in support of the search warrant did not establish probable cause to search his residence because, although it showed he possessed and was cultivating marijuana, it did not address whether the marijuana was possessed or cultivated for medical purposes. However, the police had no affirmative duty to inquire about a suspect’s status as a qualified patient or primary caregiver under the Compassionate Use Act. id: 23832
Defendant’s failure to examine the marijuana samples prevented him from showing prejudice based on the sheriff’s failure to comply with the statutory evidence preservation requirements. Defendant was convicted of cultivating marijuana. He argued the trial court erred by denying his motion to dismiss based on the alleged failure by the sheriff’s department to preserve the evidence pursuant to Health and Safety Code section 11479. However, the record shows defendant chose to forego the opportunity to examine the samples, and so there was no ability to show that he was harmed by an error in the sampling process.id: 23943
Defendant’s failure to examine the marijuana samples prevented him from showing prejudice based on the sheriff’s failure to comply with the statutory evidence preservation requirements. Defendant was convicted of cultivating marijuana. He argued the trial court erred by denying his motion to dismiss based on the alleged failure by the sheriff’s department to preserve the evidence pursuant to Health and Safety Code section 11479. However, the record shows defendant chose to forego the opportunity to examine the samples, and so there was no ability to show that he was harmed by an error in the sampling process.id: 23944
Mistake of fact defense instruction was not required for defendant who mistakenly estimated the amount of marijuana his plants would yield on the dosage needed for his condition. Defendant was convicted of marijuana possession and cultivation. He argued the trial court erred by failing to instruct on the mistake of fact defense because of evidence that he mistakenly estimated the amount of marijuana his plants would yield or the dosage needed for his medical condition. However, uncertainties were relevant for the jury to consider when evaluating the circumstances but they are not actual facts that were misunderstood by the defendant as normally contemplated by the mistake of fact defense. id: 23956
Defendant was not entitled to the definition of marijuana described in section 11362.77 where he was not raising the Compassionate Use Act defense. Defendant argued the trial court erred by refusing to instruct on the definition of “marijuana” set forth in the Medical Marijuana Program (Health and Safety Code section 11362.77(d) rather than the definition set forth in the general definitions section of the Health and Safety Code provisions governing controlled substances (section 11018). However, because defendant was not raising the Compassionate Use Act as a defense, the eight ounce restriction described in section 11362.77 did not apply.id: 23957
The evidence did not support instructions under the MMPA because it didn’t show defendant lawfully cultivated and possessed the marijuana for sale to a legitimate collective.Defendant was convicted of cultivating marijuana illegally and possessing it for sale. He argued the court erred by misinstructing the jury as to his lawful defense under the Medical Marijuana Program Act (MMPA). The instructions given were based on the Compassionate Use Act (CUA) not the MMPA, and the former does not contemplate the lawful cultivation through nonprofit organizations. However, there was insufficient evidence to support the instructions under the MMPA because it did not show he was lawfully cultivating and lawfully possessing marijuana for sale, on a nonprofit basis, to a lawfully operating collective. id: 23700
The trial court did not err by conditioning defendant’s right to transport marijuana on the requirement that his transportation be reasonably related to his current medical needs.Defendant was convicted of transporting marijuana. At trial he demonstrated that he was qualified to use marijuana for medicinal purposes under the Compassionate Use Act. The trial court did not err by instructing that the circumstances of the transportation need demonstrate defendant was transporting the marijuana for his own medical use, and that the quantity, method and distance of the transportation had to be related to defendant’s current medical needs. Nothing in the law allows a medical marijuana user to store his entire supply in his car and transport it wherever he goes, just to appease his mother. id: 21825
Medical Marijuana Program defense did not apply where defendants did not operate a true collective and profited from the sales. Defendants were convicted of possessing marijuana for sale. They sought to invoke the defense provided by the Medical Marijuana Program for qualified patients who associate to collectively or cooperatively cultivate medical marijuana. However, the defense did not apply because the operation was not a true collective. One defendant treated his excess income as his personal salary; the collective was not registered as a nonprofit; and defendants bought marijuana from others who were not in the collective.id: 23217
Defendants who owned a medical marijuana clinic could be charged with practicing medicine without a license even though they never examined patients or prescribed medical marijuana.A person who does not have a medical license or certificate may be criminally charged with practicing medicine without a license in violation of Business and Professions Code section 2052 for owning a corporation that operates a medical marijuana clinic in which licensed physicians examine the patients and issue medical marijuana recommendations to patients.id: 23283
The trial court erred by approving, in a pretrial motion, a defense instruction that would allow the retail sale of marijuana. The Medical Marijuana Program Act is not a defense to retail sales. Any money received must be no more than a cooperative or collective member’s proportionate share of the actual cost of cultivating and distributing marijuana.id: 23364
City ordinance which permits medical marijuana collectives was preempted by federal law.The City of Long Beach’s ordinance, which permits and regulates medical marijuana collectives rather than merely decriminalizing specific acts, was preempted by federal law. id: 22409
The trial court did not err by imposing a probation condition barring defendant’s use of medical marijuana.Defendant was on probation for drug possession offenses and when stopped for a traffic violation was found with two pounds of marijuana in his car. The prosecution used the offense to revoke his probation. Probation was reinstated. Defendant argued that, as a matter of law, the court could not impose a probation condition barring the use of doctor-recommended medical marijuana. However, the condition was appropriate under the circumstances.id: 21473
The authorized medical use of marijuana cannot as a matter of law render a defendant unamenable for treatment under Prop 36. Although the medical use of marijuana may be considered by the court in establishing the terms and conditions of probation under Prop 36, and in crafting the treatment to be provided, the authorized use of medical marijuana does not by itself make a nonviolent drug offender unamenable to the treatment mandated by Prop 36. id: 21375
Provision limiting the amount of marijuana a qualified person may possess or cultivate is invalid to the extent that it limits a defense under the Compassionate Use Act. Health and Safety Code section 11362.77, which is part of the Medical Marijuana Program, prescribes a specific amount of marijuana that a qualified patient may possess or cultivate. Insofar as that provision burdens a defense under the 1996 Compassionate Use Act to a criminal charge of possessing or cultivating marijuana, it impermissibly amends the CUA and in that respect is invalid under article 2, section 10, subd.(c) of the California Constitution. However, the Court of Appeal erred by concluding section 11362.77 should be severed from the MMP which would have voided the provision in its entirety.id: 21358
The trial court erred in finding a storefront medical marijuana dispensary qualified as a primary caregiver under the MMPA and the CUA.The Medical Marijuana Program Act did not unconstitutionally amend the Compassionate Use Act when it authorized “cooperatives” and “collectives” to cultivate and distribute medical marijuana. However, the trial court erred in finding the “Canna Help” qualified as a primary caregiver under the law because a storefront dispensary that merely provides walk-in customers with medical marijuana does not possess the “consistent” relationship necessary to achieve primary caregiver status. The search warrant affidavit in this case which noted the status problem established probable cause of an illegal action and even if it did not, the good faith exception to the exclusionary rule applied. Moreover, the detective who authorized the affidavit was qualified to do so.id: 21158
A person who supplied marijuana, instructed on its use and sporadically took some patients to medical appointments was not a primary caregiver under the Compassionate Use Act.A defendant whose caregiving consisted principally of supplying marijuana and instructing on its use, and who otherwise only sporadically took some patients to medical appointments, cannot qualify as a primary caregiver under the Compassionate Use Act of 1996, and was not entitled to an instruction on the primary caregiver affirmative defense. Nothing in the Legislature’s subsequent 2003 Medical Marijuana Program (Health and Safety Code section 11362.7) alters this conclusion or offers any additional defense. id: 20671
The prosecutor erred by arguing defendant possessed more marijuana than that allowed under the Compassionate Use Act based on a provision (capping the permissible amount) that was not voter approved.The 1996 Compassionate Use Act allowed for the possession of marijuana for medical purposes upon a doctor’s recommendation. The Legislature later enacted, without voter approval, Health and Safety Code section 11362.77 which caps at eight ounces, the amount of marijuana a person may possess. Defendant, who had a doctor’s note for medical marijuana, was convicted of cultivation based on his possession of 12 ounces. The prosecutor argued he was guilty based largely on the eight ounce limit set forth in section 11362.77. However, the argument was improper since the CUA can only be amended with voter approval which it was not. The provision therefore unconstitutionally amends the CUA and the prosecutor’s argument constituted prejudicial error.id: 20371
Proposition 215 may provide a defense to a marijuana charge if the circumstances show the marijuana was reasonably related to defendant's current medical needs.Defendant was convicted of possessing and transporting marijuana, which she argued was medically necessary to treat her migraine headaches. She argued Proposition 215, enacted after her convictions, provides her with a defense to the prosecution. However, Proposition 215 provides a defense only where the quantity transported and the method, timing and distance of the transportation are reasonably related to the patient's current medical needs. If so, there should and can be an implied defense to a Health and Safety Code section 11360 charge, otherwise there is not. The matter was remanded to determine whether defendant can meet the requirements.id: 10762
Defendant's belief that the Compassionate Use Act applied to transporting marijuana was a mistake of law and he was not entitled to a mistake of fact instruction.Defendant was convicted of transporting marijuana under Health and Safety Code section 11360, subd.(a). He argued the trial court erred by failing to instruct, sua sponte, on mistake of fact because he believed he was entitled to transport marijuana under the Compassionate Use Act of 1996. However, defendant's conclusion the Act applied to him was a mistake of law that does not provide a defense or require a mistake of fact instruction.id: 16475
Court properly imposed a probation condition prohibiting marijuana possession or use without providing an exception for medical use.Defendant pled guilty to cultivating marijuana under Health and Safety Code section 11358. He argued the trial court erred by imposing a probation condition prohibiting him from using or possessing marijuana, without providing an exception for medical use. However, the state law providing for the medical use of marijuana does not abrogate the trial court's traditional discretion to impose appropriate conditions of probation.id: 16556
The limited statutory immunity afforded under Prop 215 is incompatible with the common law defense of medical necessity.Defendant was charged with cultivating marijuana and possessing it for sale. He argued the court erred by finding he failed to proffer sufficient evidence to warrant a jury instruction for his defense of medical necessity. However, a medical necessity defense is inconsistent with the more limited statutory exception established by Proposition 215, which affords only a limited immunity to prosecution for the cultivation or possession of marijuana. Even if the medical necessity defense was allowable, defendant's offer of proof was insufficient to support it where he did not show an imminent threat of harm, the lack of a reasonable legal alternative, or an objectively reasonable belief that his actions were necessary.id: 17133
Police were not required to abandon a search for marijuana authorized by a warrant where defendant possessed a certificate which allowed him to possess marijuana for medical purposes.Law enforcement officers are not required to abandon a search for marijuana authorized by a search warrant when a resident of the premises to be searched produces documents that suggest he has a physician's permission to possess the marijuana pursuant to the Compassionate Use Act of 1996. That defendant had a certificate which allowed him to legally possess marijuana for medical purposes was an affirmative defense defendant could assert at trial.id: 16734
The court did not err by refusing to extend Prop 215 to exempt from prosecution those who supply medical marijuana to patients and caretakers.Defendant argued the trial court improperly failed to extend Proposition 215 to exempt from prosecution those who supply medical cannabis to patients and caretakers. However, neither the language of the proposition nor its ballot materials suggest any intent to extend its protections to those who do not qualify thereunder but who purport to supply marijuana to those who do. To the contrary, the proponents' ballot arguments reveal a delicate tightrope walk designed to induce voter approval, which would be upset if the propositions' limited immunity was stretched to cover that which its language does not.id: 17134
Medical marijuana defense does not require a showing of medical necessity.The trial court ruled that Health and Safety Code section 11362.5, enacted as part of the Compassionate Use Act of 1996, did not apply to defendant because he could not satisfy a medical necessity defense. However, the law des not require proof of a "medical necessity." The defense applies to any illness for which marijuana provides relief.id: 17651
Defendant who was charged with transporting and possessing for sale 19 ounces of marijuana was entitled to rely on the Compassionate Use Act.Defendant was charged with transporting marijuana and possessing it for sale after he was found with 19 ounces of marijuana in ten packages, as well as a scale. The trial court erred in precluding defendant from relying on the Compassionate Use Act as a defense to charges since his use had been approved by a medical doctor. The issue at trial was whether the circumstances showed he possessed the marijuana intending to address his medical needs. While the evidence was susceptible to two interpretations (medical or monetary reasons), and his medical use defense may have been unlikely to succeed at trial, he was entitled to present it.id: 18084
The compassionate use defense of section 11362.5 does not require a defendant to present evidence that he or she was seriously ill. Defendant was convicted of cultivating marijuana. The trial court erred by instructing the jury that the compassionate use defense under Health and Safety Code section 11362.5 required the defendant to present evidence that he was "seriously ill." The error was prejudicial where the evidence of cultivation was undisputed and the defense was based entirely on the Compassionate Use Act.id: 18016
Trial court lacked the authority to return marijuana to the defendant for medical use after the case was dismissed.Defendant was arrested for cultivation and possession of marijuana for sale. After the case was dismissed, he filed a motion seeking the return of a "reasonable amount" of marijuana for medicinal purposes. However, Health and Safety Code sections 11473.5 and 11475 required the destruction of the marijuana seized. The destruction did not violate the Compassionate Use Act and the court lacked authority to return the contraband to the defendant.id: 18147
The officer had probable cause to search the car once he smelled marijuana even though defendant produced a doctor's prescription for marijuana. Defendant argued that once he produced a doctor's prescription for marijuana, the deputy had no basis to detain him or search the car. However, while the Compassionate Use Act provides a limited defense against prosecution, it does not provide a shield against reasonable investigation and searches.
The officer had probable cause to search the car the moment he smelled marijuana. id: 19510
Mistake of law and the recent Medical Marijuana Program Act provided patients and primary caregivers with a defense to the charge of conspiracy to possess marijuana for sale.The Compassionate Use Act alone, does not authorize collective growing and distribution of marijuana by a group of qualified patients and caregivers. However, defendant's mistake of law as to whether that law provided him with a defense constituted a defense to the charge of conspiracy to sell marijuana. Moreover, the recent Medical Marijuana Program Act, codified in Health and Safety Code section 11362.5, subd.(b)(1)(c) does provide qualifying patients and primary caregivers with a defense to the charge of conspiracy to possess marijuana for sale. The Medical Marijuana Program Act applies to defendant's conduct which predates the law.id: 18768
The trial court properly instructed on the meaning of a "primary caregiver" for purposes of the Compassionate Use Act.Defendant argued the trial court erred in instructing the jury on the meaning of a "primary caregiver" for purposes of the Compassionate Use Act. However, the court properly instructed that a primary caregiver is an individual designed by the person exempted who has consistently assumed the responsibility for the housing, health or safety of the individual. Defendant was not entitled to an instruction that a caregiver may be reimbursed for both expenses incurred and services rendered on behalf of his patients.id: 18490
While the Medical Marijuana Program law should be applied retroactively, none of the new defenses applied to defendant.Defendant argued that the Medical Marijuana Program law, codified at Health and Safety Code sections 11362.7 - 11362.83, provided him with new defenses to the possession of marijuana for sale charge of which he was convicted. While the law should be applied retroactively, it did not apply to defendant since no new defenses were available to him. First, the jury concluded his preferred patients were not qualified patients and he was not a primary caregiver. Next, defendant was growing and possessing marijuana - he was not assisting in administering it to anyone.id: 18488
Under the Compassionate Use Act, the jury determines whether the marijuana was reasonably related to the medical needs of the patient or defendant.The trial court properly instructed that the jury must determine whether the amount of marijuana possessed by the defendant is reasonably related to the patient's current medical needs when assessing the compassionate use defense.id: 18487
Compassionate Use Act instruction accurately states defendant's obligation to raise a reasonable doubt that his possession was unlawful.Defendant was convicted of possessing marijuana for sale. He argued the instruction given on the Compassionate Use Act of 1996 (CALJIC 12.24.1) impermissibly suggested he had the burden of proving his own innocence. However, the instruction accurately states defendant's obligation to raise a reasonable doubt that his possession was unlawful.id: 18486
Post-arrest medical approval does not bring marijuana offense within the Compassionate Use Act.Defendant was arrested for cultivation of marijuana the day before the effective date of the Compassionate Use Act of 1996. (Health and Safety Code section 11362.5.) Three months later he received a doctor's approval on a written prescription form for medical use of marijuana. The approval three months after the arrest did not bring the case within section 11362.5 and defendant was properly convicted.id: 15568
Buyer's Club was not a primary caregiver for purposes of medical use of marijuana law.The sale and possession for sale of marijuana continue to be proscribed by Health and Safety Code sections 11360, subdivision (a) and 11359 following the enactment of section 11362.5 (Proposition 215). The lack of profit to the seller or possessor does not exempt such activities from prosecution. Section 11362.5, subdivision (d) only exempts a patient or the patient's primary caregiver when either of them possess or cultivate marijuana only for the patient's personal medical purposes upon the written or oral recommendation or approval of a physician. Defendants, operating a commercial enterprise selling marijuana to qualified purchasers are not primary caregivers of the purchaser by obtaining such a designation prior to the sale. They are not immunized against the enforcement of section 11579 because they allegedly store, possess, and sell marijuana in the capacity of consistent primary caretakers of the health and safety of their numerous purchasers.id: 15558
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245