Category Archives: California Law

California cannabis patients entitled to reasonable amount

People v. Trippet

“The rule should be that the quantity possessed by the patient or the primary caregiver, and the form and manner in which it is possessed, should be reasonably related to the patient’s current medical needs. What precisely are the “patient’s current medical needs” must, of course, remain a factual question to be determined by the trier of fact.”

Continue reading California cannabis patients entitled to reasonable amount

California caregivers may receive compensation

Lungren v. Peron (1997): Prop 215 did not legalize sales or dispensaries.  

“Although the sale and distribution of marijuana remain as criminal offenses under section 11360, bona fide primary caregivers for section 11362.5 patients should not be precluded from receiving bona fide reimbursement for their actual expense of cultivating and furnishing marijuana for the patient’s approved medical treatment.” … “A primary caregiver who consistently grows and supplies physician-approved or -prescribed medicinal marijuana for a section 11362.5 patient is serving a health need of the patient, and may seek reimbursement for such services.”

Who qualifies as a “caregiver”? Probably not you. Read People v Mentch (2008)

First Dist., Div. Five. Dec 12, 1997.] “Caregiver” vs, “Drug House” definitions discussion Remuneration, or payment for services discussion Continue reading California caregivers may receive compensation

California prosecutors must prove nonmedical purpose

People v. Mower 

“We conclude that, under general principles of California law, the burden of proof as to the facts underlying the section 11362.5(d) defense may, and should, be allocated to a 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.” … “As we shall explain, we believe that section 11362.5(d) reasonably must be interpreted to grant a defendant a limited immunity from prosecution, which not only allows a defense at trial, but also permits a motion to set aside an indictment or information prior to trial.”

Continue reading California prosecutors must prove nonmedical purpose

Orlosky: Informal collectives get state defense

PEOPLE v. ORLOSKY

233Cal.App.4th257(2015) • 182 Cal.Rptr.3d 561

Evidence of formally organized collective was not required for collective marijuana cultivation defense to be applicable in trial for marijuana possession and cultivation. (Note: Pursuant to HS 11362.775, which sunsets in 2019.)

THE PEOPLE, Plaintiff and Respondent, v. ROBERT C. ORLOSKY, Defendant and Appellant.

Court of Appeals of California, Fourth District, Division One.

No. D064468. • January 16, 2015.


Attorney(s) appearing for the Case

Alex Kreit, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Meagan J. Beale and Heather F. Crawford, Deputy Attorneys General, for Plaintiff and Respondent.


[CERTIFIED FOR PARTIAL PUBLICATION*]

OPINION

HALLER, Acting P. J.

Robert C. Orlosky appeals from a judgment convicting him of marijuana possession and cultivation. He argues the judgment must be reversed because the court refused his request to instruct the jury on the statutory collective cultivation defense, which permits qualified medical marijuana patients to join together to cultivate marijuana to meet their medical needs. The trial court rejected application of the collective cultivation defense on the basis that defendant and his roommate (who were growing marijuana together) had not formed a marijuana collective with some indicia of formality.

The Attorney General acknowledges that an instruction on the collective cultivation defense was likely warranted (although maintaining the particular instruction drafted by defense counsel did not accurately apply to the facts of this case). As we shall explain, although indicia of a formally organized collective may be a relevant evidentiary factor for a jury to evaluate, it is not a mandatory requirement that precludes application of the collective cultivation defense to informal joint cultivation arrangements between two qualified patients who grow marijuana exclusively for their own medical use. Accordingly, the court erred in refusing to instruct on the defense. We also find the error was prejudicial.

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For guidance in the event of retrial, we also address two additional claims of instructional error raised by defendant. We conclude (1) no mistake of fact instruction was required, and (2) there was no error in the instruction defining marijuana.As requested by defendant, we have also reviewed the record of an in camera hearing conducted by the trial court in response to defendant’s discovery request, and find no abuse of discretion.

FACTUAL AND PROCEDURAL BACKGROUND

After receiving an anonymous tip and conducting a preliminary investigation, on October 26, 2012, agents of the federal Drug Enforcement Administration (DEA) and local deputy sheriffs executed a search warrant at the rural property where defendant lived in a trailer with his roommate David Jones. The authorities found numerous marijuana plants at the property, and thereafter charged defendant and Jones with possession of marijuana for sale and cultivation of marijuana. At trial, defendant raised a medical marijuana defense under the Compassionate Use Act of 1996 (Health & Saf. Code, § 11362.5),1 claiming he was growing marijuana solely for medical purposes. Based on evidence that he and Jones were growing marijuana together and to support a claim that he did not possess marijuana in excess of his and Jones‘s medical needs, defendant requested the jury be instructed on the collective cultivation defense set forth in section 11362.775, which allows qualified patients to associate to collectively cultivate marijuana for medical purposes. The trial court refused to instruct on this defense based on its view that some level of formality was required to establish the existence of a marijuana growing collective or cooperative. After hearing the evidence, the jury rejected the charge of possession for sale, but found defendant guilty of marijuana cultivation and marijuana possession.

The prosecution witnesses included defendant’s roommate Jones (who apparently pled guilty before trial) and two law enforcement officials involved in the seizure of the marijuana (federal Agent David Lurty and Deputy Sheriff Matthew Stevens). Defendant testified on his own behalf and called two expert witnesses (patient advocate William Britt and naturopathic doctor Michelle Sexton) to support his claim that he possessed the marijuana solely for medical purposes.

In defendant’s bedroom, the authorities found six one-gallon-size plastic bags containing processed marijuana bud, a blue tub containing mostly marijuana leaves and shake, and nine marijuana stems (with buds) hanging to

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dry.2 In Jones’s bedroom, they found a marijuana stem hanging to dry and a small plastic container with some marijuana in it. Outside, the authorities found 11 marijuana plants, including plants that were over six feet tall and that had bud on them. There were indicia of marijuana use in the kitchen and living room areas (i.e., small amounts of marijuana, a couple of marijuana pipes, rolling papers, a bong, a vaporizer, and a small digital scale with marijuana residue on it). The authorities also found two firearms at the residence (an unloaded rifle in the kitchen and a shotgun loaded with two shells in defendant’s bedroom), and $2,791 cash in defendant’s bedroom. They did not find any pay and owe sheets or “dime bags” that could have been used to sell smaller quantities of marijuana.Jones was called as a witness by the prosecution to describe the marijuana cultivation activities occurring on the property. Jones’s testimony was in large part consistent with the activities described by defendant during the defense case. Jones and defendant explained that defendant’s father owned the land and rented it to a man named Christian, and Christian in turn rented it to defendant and Jones. Christian was growing about 65 to 70 marijuana plants in an outdoor greenhouse made of PVC pipe, and when the authorities arrived on October 26 all but one of these plants had been harvested or had died. Christian did not live on the property, and Jones and defendant did not participate in Christian’s cultivation of his plants.

In March 2012, Jones and defendant started growing marijuana together at the property, with most of the plants placed in a wooden greenhouse they had constructed. Jones (age 24) and defendant (age 23) were both employed, and they both had medical marijuana recommendations from doctors. Jones testified he got his marijuana recommendation in January 2012, and he used marijuana for insomnia and to alleviate pain from an injury that shattered his nose. Defendant testified he obtained his marijuana recommendation starting in 2010, and used marijuana for chronic pain and pain-induced insomnia that arose from accidents in which he broke his pelvis and was shot in the thigh area. Defendant provided a copy of his written marijuana recommendation and also presented testimony from Dr. Sexton, who elaborated on the nature of defendant’s injuries, the debilitating nature of the bone pain defendant suffered due to the bullet fragments that remained lodged in his thigh, and his use of marijuana to help him function during the day and sleep at night.

Regarding the amounts of marijuana each used, Jones stated he used about two grams per day and defendant said he used about five to eight grams per

day. Defendant explained he used marijuana after work and during the night when he could not sleep, and his preferred method of use was a vaporizer since it was not as hard on the lungs as smoking. Jones and defendant testified that defendant used the scale found at the residence to measure his daily portions. Defendant stated the doctors who gave him the marijuana recommendations did not tell him how much he should use, but said he would find an appropriate dosage after consuming for a while.Jones and defendant testified they grew a total of about 15 to 20 plants; defendant did most of the work; and Jones helped by watering the plants and adding nutrients. According to Jones, he was to receive about 10 percent of the marijuana. Defendant estimated that Jones would receive about two to three plants’ worth of marijuana. About one month before the authorities arrived, Jones and defendant harvested about three or four plants, dried them, and extracted the marijuana bud and the marijuana leaves that were found in defendant’s bedroom. They kept most of the harvested marijuana in defendant’s room because it was mainly his marijuana, although Jones was allowed to go into defendant’s room and use some of it if he wanted to do so.

About one week before the search, Jones and defendant harvested about five more plants, chopped them in half, and hung them to dry in defendant’s and Jones’s rooms. Of the 11 plants still growing outdoors when the police arrived, seven were available for the joint cultivation activity. Of the 11 plants, one was brown and unhealthy or dead; one was in Christian’s greenhouse and belonged to Christian; and two smaller plants (located in a structure separate from defendant and Jones’s wooden greenhouse) were Jones’s personal plants.3

Regarding the amount of marijuana they expected to harvest from the plants, Jones testified he and defendant planned to grow the “legal amount.” Jones stated he knew very little about growing marijuana; he did not know how big the plants would get or how much marijuana there might be in excess of their medical needs; and he did not know how many plants he would receive based on his 10 percent share of the harvest. Defendant testified he wanted to try growing marijuana because it had gotten too expensive to buy it from dispensaries; he took some horticulture classes to learn how to grow plants and read a brochure about marijuana growing; and

[233 Cal.App.4th 264]

he wanted to grow enough marijuana to last for one to two years. However, he did not know how big the plants would get or how much bud he might get from each plant.According to Jones, when he saw how big the plants grew he assumed there would be marijuana left over after their medical usage, and their plan was to sell any excess to a marijuana collective or a friend who had a medical marijuana recommendation. According to defendant, when they saw how big the plants were growing, Jones mentioned the idea of selling any excess to a collective. Defendant testified he never planned for or investigated selling to a collective, although he might have explored this if there had been a lot of excess and if it was legal to sell to a collective.

Defendant explained he got the shotgun and rifle from his father; he used them for target shooting and for protection or the appearance of protection from illegal immigrants who broke into houses; and the $2,791 cash in his room was from the sale of a backhoe that his father had given him. Apart from the discussion about possibly selling to a collective, defendant testified he never sold marijuana to anyone and never planned to do so. Jones testified he never saw defendant sell marijuana to their friends and never saw any strangers coming in and out of the residence. To refute Jones’s claim on this point, DEA Agent Lurty testified that when he interviewed Jones, Jones told him that defendant had sold marijuana to Jones’s friends.

Expert Opinions

The prosecution’s evidence concerning the specific amounts of marijuana found in defendant’s bedroom showed there was 1.26 pounds of processed marijuana in the Ziploc bags, 12.1 pounds of drying stems, and 2.6 pounds of mostly leaves and shake in the tub. Based on these amounts, as well as a consideration of the plants growing outside and other factors, the prosecution and defense experts presented their views relevant to the amount of usable product, the purpose of defendant’s possession, and amounts reasonably associated with medical use.

Prosecution expert Deputy Stevens opined that a person who had 572 grams of processed marijuana in six separate bags, nine drying stems containing bud, 10 growing plants with bud, a weighing scale, and $2,791 in cash would possess these items for sale. He stated this was “a lot of marijuana”; the packaging was indicative of sales; and a person who is using but not selling does not need a scale. He testified a typical joint contains about one-half gram of marijuana, and the effects last about four hours depending on the potency. He stated an outdoor plant can yield about one to five pounds of bud, and acknowledged that the amount of marijuana usually

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possessed for personal use varies. He opined that after about 30 days, the levels of the marijuana ingredient that makes a person “high” (THC) start to diminish; however, he did not know the rate at which this occurred.In contrast, defense expert Britt testified that patients frequently use scales for portion control, and marijuana can last up to two years if kept in a cool, dark place, and even after two years it is still usable. He stated that the 1.26 pounds of processed marijuana in the plastic bags was entirely bud, and he estimated there was about three to four pounds of usable bud in the hanging stems; about 10 grams of usable bud in the tub; and about one-half pound to one pound of leaves in the tub that could be used for baking. Relevant to the outdoor plants, Britt explained that the amount of anticipated yield depends on such factors as plant size and the size of the plant’s canopy. He opined the seven plants found outdoors and attributed to defendant would yield a total of about three and one-half pounds of bud and the two smaller plants (belonging to Jones personally) would yield about two to three ounces.

Britt testified that because of the growing seasons most people can only harvest marijuana once per year, and it would be reasonable for a patient to cultivate enough to last for one or two years. When viewing photos of defendant’s outdoor plants, Britt stated the plants appeared to have been cultivated by a novice grower because they had grown to an unwieldy height; they had not been trimmed to maximize the yield and quality; and the supports for the plants were improperly placed. He said it is very difficult for a novice grower to know what the yield from the plants will be because he or she will not know, for example, how big the plant will grow or whether it will be attacked by pests.

Defense expert Dr. Sexton testified that marijuana is a “pretty stable compound” under ideal storage conditions, although it does degrade over time to some extent; for example, a plant might degrade from 10 percent to 8 percent THC content after the passage of a year. She testified a joint typically contains about one gram of marijuana, and the effects last about three to four hours. She stated doctors do not typically recommend a specific dosage of marijuana because there is a high level of variability in patient tolerance levels and plant potency, and patients are normally told to use the amount that gives them pain relief. Although recognizing this was an “inexact science,” Dr. Sexton estimated defendant could reasonably use about eight grams a day of marijuana to control his chronic pain. For example, he could use about one gram every three hours, including during the night, or he could use a higher dosage during the night when pain tends to worsen, and a lower dosage during the day.

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Closing Arguments and Absence of Instruction on Collective Cultivation Defense

In closing arguments to the jury, the prosecutor argued that the amount of marijuana possessed by defendant was so excessive that it could not have been solely for his medical use; for example, the processed marijuana in his bedroom alone equated with 1,000 (half-gram size) joints. In contrast, relying on the evidence presented by the defense experts, defense counsel argued defendant possessed a total of about 7.7 or 8.7 pounds of marijuana, which was less than the 12.8 pounds that would be required to last for two years at a usage rate of about eight grams per day. As we shall detail below, relevant to the collective cultivation defense, in closing arguments counsel addressed the question of whether Jones’s need for medical marijuana could be considered, but no instructions were provided on the collective cultivation defense and the trial court limited defense counsel’s ability to fully develop an evidentiary basis to support it.

Jury Verdict and Sentence

Defendant was charged with cultivation of marijuana (count 1; § 11358) and possession of marijuana for sale (count 2; § 11359), with an enhancement allegation that he was armed with a firearm for each count (Pen. Code, § 12022, subd. (a)(1)). For count 1, the jury found him guilty of marijuana cultivation, and found the alleged firearm enhancement true. For count 2, it acquitted him of possession for sale, and found him guilty of the lesser offense of possession of more than 28.5 grams (§ 11357, subd. (c)). The court suspended imposition of sentence and placed defendant on three years of formal probation.

DISCUSSION

I. Law Governing Medical Marijuana

(1) In 1996, California voters approved a proposition enacting the Compassionate Use Act of 1996 (CUA) which is designed to “ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes….” (§ 11362.5, subd. (b)(1)(A).) The CUA provides that the criminal statutes proscribing marijuana possession and cultivation do not apply to patients who possess or cultivate marijuana for their personal

[233 Cal.App.4th 267]

medical purposes upon a doctor’s written or oral recommendation or approval. (§ 11362.5, subd. (d); People v. Kelly (2010) 47 Cal.4th 1008, 1012 [103 Cal.Rptr.3d 733, 222 P.3d 186] (Kelly).)4The CUA does not specify an amount of marijuana that a patient may possess or cultivate, but simply imposes the requirement that the marijuana must be for the patient’s “personal medical purposes.” (§ 11362.5, subd. (d), italics added; see Kelly, supra, 47 Cal.4th at p. 1013.) This medical purposes requirement has been judicially construed to mean “`the quantity possessed by the patient …, and the form and manner in which it is possessed, should be reasonably related to the patient’s current medical needs.‘” (Kelly, supra, at p. 1013.)

(2) The CUA includes a provision stating that one of its purposes is to “encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana.” (§ 11362.5, subd. (b)(1)(C), italics added.) Responding to this directive, in 2003 the California Legislature enacted the Medical Marijuana Program (MMP) which added several new code sections to the Health and Safety Code. (Kelly, supra, 47 Cal.4th at p. 1014; People v. Urziceanu (2005) 132 Cal.App.4th 747, 782-783 [33 Cal.Rptr.3d 859].) One of the purposes of the MMP is to “`[e]nhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects.'” (People v. Colvin (2012) 203 Cal.App.4th 1029, 1035 [137 Cal.Rptr.3d 856].) To effectuate this goal, the MMP includes a provision concerning collective cultivation, stating that “[q]ualified patients … who associate … in order collectively or cooperatively to cultivate marijuana for medical purposes” are exempt from criminal culpability. (§ 11362.775, italics added; see People v. Urziceanu, supra, 132 Cal.App.4th at p. 785.)5 A qualified patient who may participate in this collective cultivation is defined as “a person who is entitled to the protections of Section 11362.5 ….”; i.e., patients who cultivate for medical purposes upon the written or oral recommendation or approval of a physician. (§ 11362.7, subd. (f).)

Although section 11362.775 clearly provides for collective cultivation, it does not specify what the Legislature meant by an association of persons who

[233 Cal.App.4th 268]

engage in collective or cooperative cultivation for medical purposes. For example, there is no mention of formality requirements, permissible numbers of persons, acceptable financial arrangements, or distribution limitations. Not surprisingly, therefore, over the past decade there has been considerable litigation as to how the collective cultivation provision should be applied. Numerous courts have focused on collective endeavors involving the distribution of marijuana to large numbers of persons who are not involved in the cultivation activity. In that context, the courts have concluded the provision properly encompasses relatively large scale enterprises that distribute marijuana to qualified patients, so long as the enterprise operates on a nonprofit basis and in a manner consistent with distribution for medical purposes. (People v. Jackson (2012) 210 Cal.App.4th 525, 529-530, 538-539 [148 Cal.Rptr.3d 375]; People v. Colvin, supra, 203 Cal.App.4th at pp. 1036-1037; see People v. Urziceanu, supra, 132 Cal.App.4th at p. 785.) Further, the courts have found the collective cultivation provision does not require that all members actively participate in the cultivation process but allows for members to support the cooperative endeavor through, for example, financial contributions to pay for the cost of the cultivation. (People v. Jackson, supra, at pp. 529-530, 536-537.)In addition to judicial authority defining legal distribution endeavors, the Attorney General has issued detailed guidelines that delineate a variety of criteria to assist with identifying legitimate medical marijuana distribution operations, including for example, the dispensary’s compliance with state and local licensing and permit laws and the presence of other indicia of a formally organized business. (Attorney General’s Guidelines for the Security and Non-diversion of Marijuana Grown for Medical Use (Aug. 2008) pp. 8-11 (Guidelines).)6 This business formality factor has been used by the courts when examining whether a particular marijuana dispensary operation falls within the purview of criminally exempt activity under the collective cultivation provision. (See, e.g., People v. Jackson, supra, 210 Cal.App.4th at p. 539; People v. Solis (2013) 217 Cal.App.4th 51, 53, 57-59 [158 Cal.Rptr.3d 34]; People v. Colvin, supra, 203 Cal.App.4th at p. 1040; People v. London (2014) 228 Cal.App.4th 544, 566 [175 Cal.Rptr.3d 392].)

To date, the legal standards governing the collective cultivation provision, including the references to the business formality criteria, have been developed primarily in cases involving expansive marijuana distribution operations

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to persons outside the cultivation activities. There has been little or no discussion of the collective cultivation defense in the context of informal cultivation efforts among a limited number of qualified patients who simply grow and use their own marijuana with no involvement or distribution to other qualified patients.(3) In People v. Jackson, supra, 210 Cal.App.4th 525 — a case involving the question of whether a large-scale distribution operation could properly qualify for the collective cultivation defense — this court identified the essential elements of the collective cultivation defense as (1) qualified patients who have been prescribed marijuana for medical purposes, (2) the patients collectively associate to cultivate marijuana, and (3) the patients are not engaged in a profit-making enterprise. (Id. at p. 529.) Of particular import here, we did not identify business formality as a mandatory requirement for the defense in all cases. Instead, when evaluating the nonprofit requirement, we noted that indicia of a formally organized business will be highly relevant when a marijuana operation has a large number of members and high business volume, and accordingly the jury should be instructed that it may consider compliance with business formality as a relevant factor. (Id. at p. 539.)

Concerning the amount of evidence needed to require instruction on the collective cultivation defense, we emphasized in Jackson that the defendant only has a “minimal burden” in this regard. (People v. Jackson, supra, 210 Cal.App.4th at pp. 533, 538-539.) That is, the defendant need only raise a reasonable doubt about the existence of the defense, and once this burden is met, the court must provide the instruction and inform the jury that the prosecution has the burden to disprove the defense beyond a reasonable doubt. (Ibid.; see People v. Mower (2002) 28 Cal.4th 457, 479-481 [122 Cal.Rptr.2d 326, 49 P.3d 1067]; People v. Mentch (2008) 45 Cal.4th 274, 292-294 [85 Cal.Rptr.3d 480, 195 P.3d 1061] (conc. opn. of Chin, J.); People v. Saavedra (2007) 156 Cal.App.4th 561, 570-571 [67 Cal.Rptr.3d 403].)

II. Refusal to Instruct on Collective Cultivation Defense

Defendant argues the trial court erred in refusing his request that the jury be instructed on the collective cultivation defense set forth in section 11362.775. Under the particular circumstances of this case, we agree.

(4) Upon request by the defendant, a trial court is required to instruct on a defense that is supported by substantial evidence. (People v. Petznick (2003) 114 Cal.App.4th 663, 677 [7 Cal.Rptr.3d 726].) When deciding whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the evidence, but only whether there is evidence

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which, if believed by the jury, is sufficient to raise a reasonable doubt of guilt. (People v. Salas (2006) 37 Cal.4th 967, 982 [38 Cal.Rptr.3d 624, 127 P.3d 40].) The court must “take the proffered evidence as true, `regardless of whether it was of a character to inspire belief. [Citations.]’ [Citation.] `”Doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused.” [Citations.]'” (Petznick, supra, at p. 677.) On appeal, we independently review the court’s refusal to instruct on a defense. (People v. Manriquez (2005) 37 Cal.4th 547, 581 [36 Cal.Rptr.3d 340, 123 P.3d 614].)Here, at the close of the presentation of evidence, defense counsel provided the court with a proposed instruction on the collective cultivation defense and requested that the court instruct the jury on the defense. Defense counsel reiterated the instructional request after closing arguments, and then after the jury’s verdict, defense counsel filed a new trial motion based on the court’s refusal to instruct on the defense. Defense counsel argued instruction on the collective cultivation defense was required because there was evidence defendant and Jones were growing marijuana together; a collective was merely an “association of two or more people who work together to cultivate” and did not need to be organized in any particular fashion; and without an instruction the jury “may be left wondering, well, each of these people can own separately, but they’re not supposed to work together, and therefore have enough for two people.” The court repeatedly denied defense counsel’s request, ruling the defense did not apply to the facts of this case. The court ultimately explained that some level of formality was required to warrant application of the defense, stating: “[W]hatever agreement Mr. Jones and [defendant] had, I don’t think that rises to the level of [a] collective” because a collective requires “records, agreements, and not just two guys hanging out together saying, `hey, maybe we should do this.'”

When declining defendant’s request for an instruction on the collective cultivation defense, the trial court applied the business formality criteria typically used to evaluate the legitimacy of a broad scale marijuana distribution enterprise, and the court assumed the absence of this formality foreclosed the defense in a case involving an informal cultivation arrangement between two qualified patients.

On appeal, the Attorney General asserts that the specific instruction proffered by defense counsel was not supported by the evidence because it identified factors relevant to medical marijuana dispensaries, not to the alleged two-person collective claimed by the defense in this case.7 However,

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the Attorney General acknowledges that “a simple instruction on the right of qualified patients to associate to collectively or cooperatively cultivate marijuana may have been warranted,” but argues any instructional error was harmless. Under the circumstances of this case, we conclude the court erred in failing to instruct on the defense, and the error was prejudicial.(5) When interpreting the collective cultivation provision, we view the statutory enactment as a whole; consider the plain, commonsense meaning of the statutory language; and seek to effectuate the law’s purpose. (People v. Fandinola (2013) 221 Cal.App.4th 1415, 1421-1422 [165 Cal.Rptr.3d 383]; People v. Colvin, supra, 203 Cal.App.4th at p. 1037.) The collective cultivation provision set forth in section 11362.775 refers to qualified patients who associate to collectively or cooperatively cultivate marijuana. As noted, neither the statute itself, nor case law, has specified any size or formality requirements for the proper creation of the cooperative endeavor. Although business formality has been identified as a relevant evidentiary criterion that increases in probative value as the size of the marijuana distribution enterprise increases, it has not been identified as a mandatory requirement that automatically excludes all informal collective cultivation arrangements from the purview of the collective cultivation defense. (People v. Jackson, supra, 210 Cal.App.4th at p. 539.) Thus, the plain language of the collective cultivation statute, as well as the manner in which the business formality factor has been judicially applied, reflects that the absence of formality does not foreclose establishment of the collective cultivation defense in a case involving a joint cultivation endeavor confined to two qualified patients with no outside distribution.

Further, permitting application of the defense to informal collective cultivation activity is consistent with the overall statutory goal of ensuring that qualified persons have access to marijuana for medical use. Considering the broad language used in the collective cultivation provision in conjunction with the legislative goal of providing access, the statutory scheme encompasses legitimate medical marijuana collective cultivation activities between two qualified patients who grow only for themselves. (See People v. Colvin, supra, 203 Cal.App.4th at p. 1041 [evaluating application of § 11362.775 to large marijuana distribution operation, but recognizing that Legislature may have “envisioned small community or neighborhood marijuana gardens”].)

(6) Accordingly, we conclude that when there is substantial evidence to support that two qualified patients are engaging in an informal cultivation

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arrangement to grow and share marijuana only among themselves for medical purposes with no distribution to outsiders, the absence of business formality does not preclude submitting the defense to the jury for its consideration. Thus, the court erred when ruling the collective cultivation defense could not be applied in this case without evidence of a formally organized collective.

Substantial Evidence Supporting the Instruction

(7) Because the informal nature of the cultivation arrangement in this case did not foreclose application of the collective cultivation defense, the court was required to instruct on the defense if there was substantial evidence to support it. The record shows the required substantial evidence. There was no dispute that defendant and Jones were growing marijuana together. Also, there was evidence that Jones, like defendant, was a qualified patient. Jones testified he had a marijuana recommendation from a doctor and that he used marijuana for pain and insomnia. The CUA permits assertion of the compassionate use defense upon a written or oral doctor’s recommendation, and Jones’s testimony that he had this recommendation was sufficient to warrant submitting the issue of his qualified patient status to the jury for its determination. (§ 11362.5, subd. (d); see People v. Jones (2003) 112 Cal.App.4th 341, 350-351 [4 Cal.Rptr.3d 916] [based on defendant’s testimony that he had doctor’s oral approval to use marijuana, trial court was required to allow presentation of compassionate use defense to jury].) Finally, there was testimony from Jones, defendant, and the defense experts that supported the view that the amount of marijuana possessed by defendant was reasonably related to defendant’s and Jones’s combined medical needs.

Prejudice

The failure to instruct on the collective cultivation defense requires reversal regardless whether we apply the reasonable probability of a different outcome standard for state law error or the harmless beyond a reasonable doubt standard for federal constitutional error. (People v. Salas, supra, 37 Cal.4th at p. 984 [prejudice test for failure to instruct on defense not yet determined]; People v. Rogers (2006) 39 Cal.4th 826, 871-872 [48 Cal.Rptr.3d 1, 141 P.3d 135] [harmless beyond a reasonable doubt standard applies when error deprives defendant of right to present complete defense]; People v. Demetrulias (2006) 39 Cal.4th 1, 23 [45 Cal.Rptr.3d 407, 137 P.3d 229].)

The key disputed issue at trial was whether the amount of marijuana grown and possessed by defendant exceeded a legitimate medical purpose. The jury was instructed that under the compassionate use defense, the “amount of marijuana possessed or cultivated must be reasonably related to the patient’s current medical needs.” (Italics added; see CALCRIM Nos. 2370, 2352,

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2375.) However, the jury was given no instruction indicating that if it found defendant and Jones to be qualified patients who were growing marijuana together for their own use, defendant could lawfully grow marijuana commensurate with two patients‘ medical needs.Thus, when the jury was evaluating the pivotal issue of whether defendant had an excessive amount of marijuana that would preclude application of the compassionate use defense, it had not been told it could consider defendant’s possession and cultivation in light of the evidence that he was engaging in a cooperative growing operation with another qualified patient. The jury’s view of the reasonableness of the amounts possessed by defendant may well have been altered had it been instructed on the collective cultivation defense and based thereon decided to incorporate Jones’s medical needs and usage into its calculations.

Also, although there were some references in the record to the existence of the collective cultivation defense, in several instances the trial court precluded defense counsel from fully developing the evidentiary basis for the defense. That is, defense counsel elicited brief testimony from defense expert Britt about the collective cultivation defense, and in closing arguments defense counsel urged the jury to consider both defendant’s and Jones’s medical needs, whereas the prosecutor told the jury that defendant could only grow marijuana for himself because there was not enough evidence to establish that Jones was a qualified patient. However, the trial court sustained relevancy and/or hearsay objections when defense counsel sought to elicit testimony from Britt about a small collective, from Dr. Sexton about her knowledge of Jones’s medical needs, and from defendant about his knowledge of Jones’s marijuana recommendation.

At best, the jurors may have gleaned from these references that collective cultivation can be raised as a defense, but they could have been easily misled to think the defense did not properly apply to this case because the defense was not mentioned in the instructions and they heard the court curtailing defense counsel’s attempts to elicit additional testimony relevant to the defense. Without guidance from the court on this area of the law, the jury might have thought (as did the court) that the defense was legally inapplicable to defendant and Jones because they were not a formally organized collective or cooperative. Also, because no affirmative instruction on the defense was provided, the jury may not have recognized that the prosecution had the burden to disprove that defendant was engaged in collective marijuana cultivation with Jones for medical purposes.

Finally, the record does not show that defendant necessarily possessed an amount of marijuana that was so beyond reasonable medical usage for two

[233 Cal.App.4th 274]

people as to foreclose the probability of application of the compassionate use defense even with proper instruction on the collective cultivation defense. In addition to the evidence about defendant’s and Jones’s medical marijuana recommendations, usage, and cooperative cultivation, the jury was presented with evidence concerning defendant’s gunshot injury and need for pain medication, and expert views about the amount of marijuana he could reasonably use, the reasonableness of cultivating marijuana to last for several years, the uncertainties of yield results for novice growers, and the amount of usable marijuana he possessed. The jury needed to evaluate this evidence to decide if defendant was selling marijuana, whether he was a qualified patient, and if so, whether he possessed and/or cultivated marijuana beyond his (and possibly Jones’s) reasonable medical needs.The jury rejected the prosecution’s claim that defendant possessed the marijuana with the intent to sell it, which indicates the jury did not view the amounts he possessed as outside the realm of possession for personal use. Although the record can support that defendant had an amount of marijuana beyond what would be reasonable to establish the compassionate use defense, the record can also support a contrary conclusion if the jury credited all or part of the defense evidence.

Because the primary dispute in this case was whether defendant’s possession and cultivation exceeded a legitimate medical purpose, and because there is a reasonable probability the jury’s assessment of this issue would have been different if the jury had been instructed that the law permits collective cultivation among qualified patients, the failure to instruct on the collective cultivation defense requires reversal.

III. Guidance in the Event of Retrial

To assist the court and parties if the case is retried, we address defendant’s two additional claims of instructional error: (1) the jury should have been instructed on mistake of fact, and (2) the jury was incorrectly instructed on the definition of marijuana. We need not address defendant’s claim that the court improperly excluded an item of expert testimony proffered from defense witness Britt since this is a matter for resolution should it arise again in any retrial.

A. Failure to Instruct on Mistake of Fact

Defendant argues the trial court erred by failing to sua sponte provide, or his counsel was ineffective for failing to request, an instruction on the mistake of fact defense. In support, defendant contends there was evidence

[233 Cal.App.4th 275]

from which the jury could find that he mistakenly estimated the amount of marijuana his plants would yield, or the dosage of marijuana needed for his medical condition.(8) Generally, a trial court has a sua sponte duty to instruct on principles of law that are closely and openly connected to the facts and necessary to the jury’s understanding of the case (People v. Montoya (1994) 7 Cal.4th 1027, 1047 [31 Cal.Rptr.2d 128, 874 P.2d 903]), and defense counsel has a duty to request all instructions that are necessary to explain the legal theories of defense (People v. Sedeno (1974) 10 Cal.3d 703, 717, fn. 7 [112 Cal.Rptr. 1, 518 P.2d 913]).

(9) If the defendant had an honest and reasonable belief in the existence of circumstances, which, if true, would make the act an innocent act, the mistake of fact defense applies. (People v. Lucero (1988) 203 Cal.App.3d 1011, 1016-1017 [250 Cal.Rptr. 354].) A mistake of fact occurs when a person understands the facts to be other than what they are. (People v. LaMarr (1942) 20 Cal.2d 705, 710 [128 P.2d 345].) “A mistake of fact exists `when one makes an erroneous perception of the facts as they actually exist…. The defense arises only where the defendant misperceives an objective state of existing fact….'” (State v. Beltran (1998) 246 Conn. 268 [717 A.2d 168, 172].)

Assuming that in some circumstances a court may have a sua sponte duty to instruct on mistake of fact, on this record we find no error, nor do we find ineffective assistance of counsel.8 In defendant’s trial, factors such as the potential yield from the plants and the amount medically needed by defendant were not presented as actual facts that defendant could have misperceived to potentially relieve him of culpability; rather, they were presented as opinions and matters that could vary depending on the circumstances. For example, a defense witness indicated it was difficult for novice growers to determine the yield of their plants and opined that defendant’s seven outdoor plants could have yielded a total of about three and one-half pounds of marijuana, whereas a prosecution witness opined the typical yield from an outdoor plant can be between one and five pounds. Further, defendant explained how his doctors did not provide a dosage amount to guide him, and a defense expert presented her views on the variability of dosages among patients and the amount defendant could reasonably use on a daily basis.

On this record, showing a multiplicity of views and opinions concerning yield expectations and reasonable usage amounts, a defense claim that

[233 Cal.App.4th 276]

defendant miscalculated or misunderstood these matters arose not from misperceptions of the facts as they actually were but rather from the existence of different viewpoints and uncertainties concerning yield and usage amounts. These differing views and uncertainties were relevant for the jury to consider when evaluating all the circumstances to determine whether defendant confined his possession and cultivation to amounts reasonably related to medical purposes, but they were not actual facts that were misunderstood by defendant as normally contemplated by the mistake of fact defense.Although in some circumstances it might be appropriate to provide a mistake of fact instruction with respect to the issue of reasonable medical needs, on this record the trial court was not required to provide the instruction sua sponte, nor did counsel’s failure to request it rise to the level of ineffective representation.

B. Instruction on Definition of Marijuana

Defendant asserts the court erred in declining his request that the jury be instructed on a particular definition of marijuana set forth in the MMP portion of the Health and Safety Code (§ 11362.77, subdivision (d)), rather than the definition of marijuana set forth in the general definitions section of the Health and Safety Code provisions governing controlled substances (§ 11018).

The jury was given the standard CALCRIM instructions that delineate the offenses of unlawful marijuana possession and cultivation as well as the compassionate use defense, and include a definition of marijuana derived from the general definitions section of the Health and Safety Code. (See CALCRIM Nos. 2370, 2352, 2375; §§ 11000, 11018.) This definition generally states that marijuana can include all parts of the plant, with some exceptions such as the stalks and certain types of seed derivatives.9 In contrast, section 11362.77, subdivision (d), part of the MMP, contains a narrower definition of marijuana, confining it to the “dried mature processed flowers” of the plant. (Italics added.) As we shall explain, the trial court correctly ruled the narrower MMP definition was not applicable to this case.

[233 Cal.App.4th 277]

The MMP includes “`safe harbor'” provisions that allow patients who suffer from serious medical conditions to voluntarily obtain medical marijuana identification cards which provide them protection from arrest. (Kelly, supra, 47 Cal.4th at pp. 1014-1015; see § 11362.71, subd. (e).) In contrast, qualified patients who do not have identification cards are not shielded from arrest, but must seek relief from criminal penalties by raising their qualified patient status as a defense. (Kelly, supra, at pp. 1012-1014.) The MMP also contains a provision (§ 11362.77) stating that a qualified patient may possess only a maximum of “eight ounces of dried marijuana,” unless a doctor recommends that this quantity will not meet the patient’s medical needs. (§ 11362.77, subd. (a); see id., subd. (b).) This same section (§ 11362.77) contains the narrower definition of marijuana cited by defendant, stating that only the “dried mature processed flowers of female cannabis plant or the plant conversion shall be considered when determining allowable quantities of marijuana under this section.” (§ 11362.77, subd. (d), italics added.)10In Kelly, the court held that section 11362.77’s eight-ounce limitation could not be used to override the CUA’s allowance of medical marijuana possession in an amount reasonably related to the patient’s medical needs. (Kelly, supra, 47 Cal.4th at pp. 1012, 1043-1049.) That is, although a patient with an identification card and possessing no more than eight ounces of marijuana may seek protection from arrest under the MMP’s safe harbor provisions, the eight-ounce limitation may not be used to burden the reasonable medical needs defense authorized by the CUA. (Kelly, supra, at pp. 1012, 1024, 1048-1049.)

Here, because defendant was raising the CUA as a defense and not seeking protection under the MMP’s safe harbor provisions, section 11362.77’s eight-ounce restriction was inapplicable. Consistent with this, the jury was instructed that under the CUA “[t]he amount of marijuana possessed or cultivated must be reasonably related to the patient’s current medical needs.” (CALCRIM No. 2370.) The jurors were also given a special instruction explicitly advising them that the eight-ounce limitation did not apply.

(10) By its plain terms, section 11362.77’s narrower marijuana definition applies only “when determining allowable quantities of marijuana under this

[233 Cal.App.4th 278]

section” (id., subd. (d), italics added), that is, when determining the eight-ounce limitation set forth in section 11362.77. Because defendant’s CUA defense was not governed by section 11362.77’s eight-ounce limitation, section 11362.77’s narrower definition of marijuana did not apply.We note the prosecutor argued to the jury that defendant’s written medical marijuana recommendation implicitly limited his possession to the eight-ounce maximum set forth in the MMP because his doctor apparently did not fill out a portion of a recommendation form asking if there was an exemption to the statutory limitation. However, as stated, the jury was instructed that defendant’s possession was not governed by the eight-ounce restriction, and the prosecutor’s attempt to argue that defendant’s prescription allowed possession of only eight ounces did not make this statutory limitation the governing standard in defendant’s case.11

Because defendant’s CUA defense was not governed by section 11362.77’s eight-ounce limitation, the trial court properly declined to instruct the jury on the definition of marijuana set forth in that section.

IV. Review of In Camera Hearing on Defendant’s Discovery Request*

DISPOSITION

The judgment is reversed.

O’Rourke, J., and Aaron, J., concurred.

FootNotes

* Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of Discussion, part IV.

1. Subsequent unspecified statutory references are to the Health and Safety Code.
2. Bud is the flower of the female plant that is typically smoked or ingested by marijuana users. Shake is ground-up marijuana leaves that can be used for edibles or smoking, although according to defense witnesses not all leaves are usable for this purpose and they have less potency than bud.

3. During the search of the property, the authorities also found a variety of other items outside that could be associated with marijuana growing, including “grow pots”; “grow bags”; a “grow tent” designed for indoor cultivation; and a storage shed with indoor cultivation fans, ventilation tubing, and a ballast to allow for high intensity indoor electrical lighting systems. Jones and defendant said these materials belonged to Christian, and they only grew marijuana outdoors.

4. Section 11362.5, subdivision (d) states: “Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.”

5. Section 11362.775 states: “Qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, 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 under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570.”

6. The Guidelines are available at <http://ag.ca.gov/cms_attachments/press/pdfs/ n1601_medicalmarijuanaguidelines.pdf> (as of Jan. 16, 2015). Additional criteria specified in the Guidelines include such factors as limitation of purchase, sale and distribution transactions to persons who are qualified patients and members of the cooperative; limitation of monetary reimbursement from members to amounts necessary for overhead and operating costs; and documentation of each member’s contribution of resources to the enterprise. (Guidelines, supra, at pp. 8-11.)

7. The instruction drafted by defense counsel, derived in part from the Attorney General’s Guidelines, sets forth the concepts that under the MMP, qualified patients may associate to collectively or cooperatively cultivate marijuana for medical purposes; a collective is an organization that facilitates the collaborative efforts of patients; it is not a statutory entity but as a practical matter might have to organize as some form of business to carry out its activities; it should not purchase from or sell to nonmembers; marijuana may be allocated based on fees reasonably calculated to cover overhead and operating expenses; and not all members must participate in the cultivation as long as the collective is nonprofit.

8. There is no sua sponte duty to instruct on the mistake of fact defense in cases where the claimed mistake merely negates a mental state element that has been fully explained to the jury in the instructions, so that the mistake of fact instruction is no more than a pinpoint instruction on a defense claim. (People v. Lawson (2013) 215 Cal.App.4th 108, 117-119 [155 Cal.Rptr.3d 236].)

9. The jury was instructed: “Marijuana means all or part of the Cannabis species plant, including Cannabis sativa L. and Cannabis indica, whether growing or not, including the seeds and resin extracted from any part of the plant. It also includes every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin. It does not include the mature stalks of the plant; fiber produced from the stalks; oil or cake made from the seeds of the plant; any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted there from), fiber, oil, or cake; or the sterilized seed of the plant, which is incapable of germination.” (Italics added & some italics omitted.)

10. These subdivisions of section 11362.77 state: “(a) A qualified patient or primary caregiver may possess no more than eight ounces of dried marijuana per qualified patient. In addition, a qualified patient or primary caregiver may also maintain no more than six mature or 12 immature marijuana plants per qualified patient. [¶] (b) If a qualified patient or primary caregiver has a doctor’s recommendation that this quantity does not meet the qualified patient’s medical needs, the qualified patient or primary caregiver may possess an amount of marijuana consistent with the patient’s needs. [¶] … [¶] (d) Only the dried mature processed flowers of female cannabis plant or the plant conversion shall be considered when determining allowable quantities of marijuana under this section.” (Italics added.)

11. Since this issue has not been raised on appeal, we express no opinion as to the propriety of the prosecutor’s assertion that defendant’s doctor’s recommendation implicitly permitted him to possess only eight ounces of marijuana.

* See footnote, ante, page 257.

Baniani: Patients’ right to buy and sell cannabis

 The PEOPLE, Plaintiff and Respondent, v. Borzou Bo BANIANI, Defendant and Appellant.

Court of Appeal, Fourth District, Division 3, California. “Section 11362.775 was written to provide a defense to a charge of selling marijuana in appropriate circumstances.” Based on SB 420 HS 11362.775, which sunsets in 2019.

 G048535 Decided August 22, 2014 • 229 Cal.App.4th 45(2014)

Law Office of Scott C. Thomas and Scott C. Thomas; Law Offices of Glew & Kim, Christopher Glew; for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Kimberley A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

Defendant, a founding member of a medical marijuana cooperative, was charged with a sale of marijuana (Health & Saf.Code, §§ 11360, subd. (a);  all further undesignated statutory references are to this code) and possession of marijuana for sale (§ 11359).   The first jury was unable to reach a verdict, splitting six to six on the sales charge and nine to three for not guilty on the possession for sale charge.   Defendant was permitted a defense under the Medical Marijuana Program Act (MMPA;  § 11362.5 et seq.) in that trial.   On retrial, he was denied the defense.   The second jury was still unable to reach a verdict on the sales charge, but convicted defendant of possessing marijuana for sale.   Because we find he was entitled to a defense under the MMPA and the error in precluding the defense was prejudicial, we reverse.

I

FACTS AND PROCEDURES. Procedural Background

Defendant was charged in an information with a sale of marijuana on March 23, 2010 (§ 11360, subd. (a);  count one) and possession of marijuana for sale on April 7, 2010 (§ 11359;  count two).   His defense was that he had a physician’s recommendation to use medical marijuana, he ran a medical marijuana cooperative in compliance with the MMPA, he was not present on the date of the sale, and the sale was made by a person who did not comply with the protocol of the cooperative.   As noted above, the first jury hung six to six on the sales count and nine to three for not guilty on the possession for sale count.

In the second trial, the court held defendant was not entitled to a defense under the MMPA. The second jury was unable to reach a verdict on count one and found defendant guilty on count two, possession of marijuana for sale.   The court placed defendant on three years of formal probation and imposed various fines, fees, and conditions.   The court expressly authorized defendant’s continued use of medical marijuana due to his medical condition.   Count one was then dismissed on the People’s motion.

B. Facts

1. Prosecution Evidence

In March 2010, Elijah Hayward worked as an undercover narcotics detective with the Newport Beach Police Department.   Using a fake name and driver’s license, he visited a physician and obtained a recommendation to use medical marijuana.

On March 23, 2010, Hayward went to a two-story business building located on Campus Drive, based on information a marijuana dispensary was located there.   He went to an office on the second floor.   On the door was a sign that stated, “by appointment only.”   Hayward knocked and saw someone peek through the blinds.   A male in his 20’s, with dark hair and an olive complexion answered the door.   The male said his name was Sean, and invited Hayward in.1  Sean directed Hayward to a small waiting room and asked for his identification and physician’s recommendation, which Hayward then gave him.   Sean left and entered another room.   After Hayward heard what sounded like a copying machine, Sean reappeared in the waiting room, returned the identification and recommendation to Hayward, and gave him a two-page membership application for Herbal Run Marijuana Collective (Herbal Run).   Hayward signed the application and gave it back to Sean. Sean took the signed membership application back into the same room he had taken Hayward’s identification and recommendation.

When Sean returned, he showed Hayward into another room.   This one contained a countertop and two refrigerators with clear, glass doors.   There were a number of jars of marijuana on display and a dry erase board on the wall.   Hayward said the board contained the names of different strains of marijuana and their prices.   Hayward told Sean he wanted an eighth of an ounce of one of the strains.   Sean weighed it out and Hayward paid him $60.   Sean placed the container of marijuana in a bag and gave Hayward a marijuana cigarette and a small brownie, neither of which had Hayward requested.

On April 7, 2010, Officer Brian Mack of the Newport Beach Police Department was dispatched to the same location on Campus Drive based on reports of the smell of burnt marijuana at the location.   Mack too smelled burnt marijuana.   Mack knocked on the door and the smell of burnt marijuana got stronger when defendant answered the door.   Mack explained why he was there and defendant said he had a marijuana recommendation permitting him to smoke marijuana.

Mack entered the office and asked defendant what business was run at the location.   Defendant said he operates a property management and real estate investment company, Advantage.   He added he also runs a marijuana dispensary in Costa Mesa and he uses the Advantage office as a storage facility.

Defendant unlocked doors to separate rooms, enabling the officers to search those rooms.   During the search, officers found, inter alia, 78 pre-rolled marijuana cigarettes, seven lollipops labeled “candy containing marijuana,” 24 chocolate bars containing marijuana, 12 plastic packets of salad dressing containing marijuana, a glass jar containing a pound of marijuana, a silver canister containing 16 grams of marijuana, and a plastic bag containing marijuana “shake.”   The officers also found a white dry erase board listing strains of marijuana and prices for the different strains.   Additionally, the police found a three-ring binder containing a ledger of business transactions, and $310.

2. Defense Evidence

After the court held the defendant was not entitled to a defense under the MMPA, the defense introduced the following evidence.   Defendant had a valid physician’s recommendation to use medical marijuana, and a valid state medical marijuana identification card and caregiver license, meaning he could be a caregiver to a patient with a recommendation for marijuana use.

Defendant started a medical marijuana collective, Herbal Run, because he had an uncle who passed away from pancreatic cancer.   It was not defendant’s intent to sell marijuana, as the collective is a nonprofit entity.   Prior to creating the collective, defendant consulted with Attorney Stewart Richlin.   Richlin, who also testified, drafted the collective’s bylaws, reviewed state laws and the Attorney General’s Guidelines with defendant, and filed the nonprofit articles of incorporation for Herbal Run. Additionally, defendant acquired a State of California Board of Equalization seller’s permit.

His first indoor marijuana “grow” was with three other members of the collective in August 2009.   Shortly afterward there were 10 members in the collective.   Prior to becoming members the individuals were required to sign membership contracts drafted by Richlin.

Defendant invested money into the various “grows.”   He was not attempting to and did not make any profit off the “grows.”   The “grow” that resulted in the marijuana seized in April 2010, was the result of indoor and outdoor “grows.”   Those “grows” belonged to everyone in the collective, but Steven Sonders and an individual named John were the actual growers.

Defendant described the intake procedure whereby an individual may join the collective.   Herbal Run’s Web page did not have a street address on it.   Neither did its business cards.   To join the collective, individuals would call the telephone number on the Web site or business card.   A member of Herbal Run would then take down the individual’s information, including name, address, identification number, and the recommending physician’s name and telephone number.   The recommendation would then be confirmed with the recommending physician before an appointment was made for the individual to come into the office.   At the appointment, an Herbal Run member would review the bylaws with the individual and find out what the person could contribute to the process.   Individuals who refused to contribute were not permitted to join.

In April 2010, Herbal Run had 70 to 75 patients.   Defendant asked members to donate either time or money toward the “grow.”   When asked what activities the members contributed, defendant stated:  “Everybody would put together, if they can help with the grow, if they had any experience with the grow, if they can just water the plants or trim or make butter or cook cookies.”   All the applicants were required to give time to the collective, but those who could not physically contribute to the cultivation of the plants donated money.

Defendant said the three-ring binder seized by the police is a log of the money donations made to Herbal Run. The log notes show whether the person making the donation was from a delivery or from “a walk-in,” someone who called first and then made an appointment.   The reason prospective members had to make an appointment was because a member needed to be present to process the application and members were not always there.   Individuals were not permitted entry without having first made an appointment.

Defendant trained members who handled new patients.   He specifically trained them to explain to an applicant the requirement of contributing time and effort.   Defendant said he was not present on March 23, 2010, when Sean and Hayward engaged in a transaction.   Defendant was visiting his grandmother in Iran. He added the two-page document Hayward said he signed was “not [a] complete document.”   Defendant said he did not find the two-page document Hayward said he signed.   Defendant retained all his “patient” records.   There was no record from March 23, 2010, and Sean never told defendant about the transaction.   Sean should not have permitted an individual who had not gone through prescreening to enter.

Defendant explained the prices on the dry erase board were for patients who could not contribute their time because they were too sick and who would prefer to pay.   The amount was based on the expenses claimed by the growers.   Defendant does not keep any money from monetary donations;  that goes to the collective’s growers to reimburse them for their costs.   Defendant said he did not believe the growers were making a profit and he never attempted to make a profit.

Other members of Herbal Run testified about the requirements for obtaining medical marijuana from Herbal Run. Each testified to donating time or experience in exchange for medical marijuana.

II DISCUSSION

Prior to the second trial, the prosecutor brought an Evidence Code section 402 motion to preclude defendant from asserting a defense under the MMPA. The defendant argued he did nothing illegal because he was a qualified patient whose physician recommended his use of medical marijuana, he formed a medical marijuana collective, Herbal Run, and operated the collective in compliance with the MMPA and the Attorney General’s Guidelines.   Specifically, he claimed his actions were protected under section 11362.775 of the MMPA and that section 11362.775 does not preclude the exchange of money for medical marijuana when the money is used to cover the costs of cultivation.   The district attorney argued sales are not protected by the MMPA. He also asserted the MMPA did not apply because Herbal Run was a for profit organization.   The court held defendant was not entitled to the benefit of the defense because there was evidence he charged for the marijuana.   Consequently, defendant was precluded from presenting evidence on the defense and the jury was not instructed on it.   Defendant claims the court prejudicially erred.   We agree.

A. Standard of Review

“ ‘It is well settled that a defendant has a right to have the trial court ․ give a jury instruction on any affirmative defense for which the record contains substantial evidence [citation]—evidence sufficient for a reasonable jury to find in favor of the defendant [citation]—unless the defense is inconsistent with the defendant’s theory of the case [citation].   In determining whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the defense evidence, but only whether “there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt․”  [Citations.]’  [Citations.]”  (People v. Mentch (2008) 45 Cal.4th 274, 288.)   Specifically in cases raising the issue of whether a defendant is entitled to a defense under the Compassionate Use Act (CUA) or MMPA, the defenses “relate directly to the nature of the defendant’s conduct as opposed to a collateral matters.”  (People v. Jackson (2012) 210 Cal.App.4th 525, 533.)   Consequently, “those defenses only require that a defendant raise a reasonable doubt as to whether the elements of the defenses have been proven.”  (Ibid.) When the trial court addresses this issue, it does not consider the credibility of the witnesses.   That issue is left to the jury to decide.  (Ibid.;  People v. Villanueva (2008) 169 Cal.App.4th 41, 49.)

B. Background:  The CUA, MMPA, and the Attorney General’s Guidelines

In November 1996, the electorate enacted section 11362.5 as part of Proposition 215.   The CUA was enacted “[t]o ensure seriously ill Californians have the right to obtain and use medical marijuana for medical purposes,” when their use of medical marijuana has been recommended by a physician in the treatment for illness. (§ 11362.5, subd. (b)(1)(A).)   The electorate enacted the CUA to ensure such patients and their primary caregivers 2 are not subject to criminal prosecution for obtaining and using marijuana for medical purposes. (§ 11362.5, subd. (b)(1)(B).)  To that end, subdivision (d) of section 11362.5, provides that section 11357 [prohibiting possession of marijuana] and section 11358 [prohibiting cultivation of marijuana] do not apply to a primary caregiver or a qualified patient.  “Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.” (§ 11362.5, subd. (d).)

In addition to assuring qualified patients have access to medical marijuana, the CUA was intended “[t]o encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana.” (§ 11362.5, subd. (b)(1)(C).)  On the whole, “the [CUA] is a narrowly drafted statute designed to allow a qualified patient and his or her primary caregiver to possess and cultivate marijuana for the patient’s personal use despite the penal laws that outlaw these two acts for all others.”  (People v. Urziceanu (2005) 132 Cal.App.4th 747, 772–773.)

While the CUA expressly refers to sections 11357 and 11358 (§ 11362.5, subd. (d)), at least one court has found the CUA also provides, in appropriate cases, an implied defense to a charge of transporting marijuana (§ 11360, subd. (a)).  People v. Trippet (1997) 56 Cal.App.4th 1532, involved an appeal from convictions for possession of more than 28.5 grams of marijuana (§ 11357, subd. (c)) and transportation of marijuana (§ 11360, subd. (a)) prior to Proposition 215’s passage and enactment of the CUA (§ 11362.5).   The defendant had attempted to use a medical necessity defense and presented the testimony of her physician.   With the Attorney General’s agreement, the appellate court found the CUA could be applied retroactively.  (People v. Trippet, supra, 56 Cal.App.4th at pp. 1544–1545.)   More pertinent to the issue presented in the present case, the court had to determine whether the CUA provided a possible defense to the charge of transporting marijuana.

The appellate court noted the CUA provided a defense to two specific sections pertaining to marijuana—section 11357 [possession of marijuana] and 11358 [cultivation of marijuana] (People v. Trippet, supra, 56 Cal.App.4th at pp.   1543–1544)—and the CUA was not intended to make wholesale changes to the criminal law relating to existing marijuana prohibitions (id. at p. 1546).   That being said, the court noted a limited defense to a charge of transporting marijuana necessarily exists under the CUA, notwithstanding the fact that section 11362.5 does not list section 11360 as a statute that does not apply to qualified patients and caregivers.   The Attorney General conceded as much.   (People v. Trippet, supra, 56 Cal.App.4th at p. 1550.)  “[T]he voters could not have intended that a dying cancer patient’s ‘primary caregiver’ could be subject to criminal sanctions for carrying otherwise legally cultivated and possessed marijuana down a hallway to the patient’s room.”  (Ibid.;  see People v. Emmal (1998) 68 Cal.App.4th 1313, 1315 [transporation conviction upheld where drug was moved 20 feet];  see also People v. Ormiston (2003) 105 Cal.App.4th 676, 683 [transportation conviction upheld where defendant walked while in possession of drug].)

In 2003, the Legislature found qualified patients and their caregivers had been prevented from obtaining the protections intended by the CUA (Stats.2003, ch. 875, § 1, subd. (a)(2)), and responded by enacting the MMPA (§ 11362.7 et. seq.) which became effective on January 1, 2004.   The MMPA added “18 new code sections that address the general subject matter covered by the CUA.” (People v. Kelly (2010) 47 Cal.4th 1008, 1014.)   Included therein were sections providing for the issuance of identification cards for qualified patients (§ 11362.71 — 11362.755), a section setting forth the amount a marijuana that may be possessed by qualified patients (§ 11362.77), a section listing places where the use of medical marijuana is prohibited (§ 11362.79), and a section urging Regents of the University of California to create the California Medical Marijuana Research Program (§ 11362.9).   Relevant to the issue at hand, the MMPA also permits qualified patients and their designated primary caregivers to join together “in order collectively or cooperatively to cultivate marijuana for medical purposes” without being subject to “state criminal sanctions under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570.” (§ 11362.775.) The MMPA has expanded the scope of protection beyond that initially provided by the CUA, which was limited to cultivation of and possession of medical marijuana.  (People v. Urziceanu, supra, 132 Cal.App.4th at p. 784.)

In 2010, the Legislature added section 11362.768 to the MMPA. (Stats.2010, ch. 603, § 1.) This section implicitly recognizes the lawfulness of a “marijuana cooperative, collective, dispensary, operator, establishment or provider who possesses, cultivates, or distributes medical marijuana pursuant to” the MMPA, but prohibits such entities from operating “within a 600–foot radius of a school.” (§ 11362.768, subd. (b).)  “This section shall apply only to a medical marijuana cooperative, collective, dispensary, operator, establishment, or provider that is authorized by law to possess, cultivate, or distribute medical marijuana and that has a storefront or mobile retail outlet which ordinarily requires a local business license.” (§ 11362.768, subd. (e).)

In 2008, before the enactment of section 11362.768 and pursuant to the requirement set forth in section 11362.81,3 the Attorney General issued Guidelines concerning marijuana grown of medical use.  (Cal. Atty. Gen., Guidelines for the Security and Non-diversion of Marijuana Grown for Medical Use (Aug.2008) [as of Aug. 15, 2014] (Guidelines).)   The Guidelines noted the California State Board of Equalization (BOE) filed a notice that it would issue seller’s permit to tax medical marijuana transactions.   Possession of a seller’s permit would not, however, permit unlawful sales of marijuana.  (Guidelines, § I.D., pp.   2–3) The BOE Special Notice Information on Sales Tax and Registration for Medical Marijuana Sellers stated even those who do not make a profit from selling medical marijuana, must pay taxes on the sales.  (BOE, Special Notice (June 2007), p. 2 [as of Aug. 15, 2014].)   The guidelines note medical marijuana cooperatives and collectives are not authorized to make a profit from the sale or distribution of medical marijuana.  (Guidelines, § IV.B.1, p. 9.)

The Guidelines also provide guidance to groups acting collectively or cooperatively in “cultivating and distributing marijuana for medical purposes.”  (Guidelines, § IV.A., p. 8.) Cooperatives must file articles of incorporation and cannot be organized to make a profit for themselves.   (Guidelines, § IV.A.1, p. 8, citing Corp.Code, §§ 12201, 12300, 12311, subd. (b).)  The guidelines further state cooperatives should not “sell” medical marijuana to “non-members.”  (Guidelines, § IV.A.2, p. 8.) However, the guidelines provide medical marijuana may be provided for free to qualified patients and caregivers;  and may be provided in exchange for services rendered, “[a]llocated based on fees that are reasonably calculated to cover overhead costs and operating expenses,” or a combination of services and fees.  (Guidelines, § IV.B.6, p. 10, italics added.)

C. Defendant was Entitled to a Defense Under the MMPA.

The prosecution relied primarily on People v. Mentch, supra, 45 Cal.4th 274, and People ex rel. Trutanich v. Joseph (2012) 204 Cal.App.4th 1512 for the proposition that defendant was not entitled to a defense under the MMPA. In People v. Mentch, the defendant was charged with cultivating marijuana (§ 11358) and possessing marijuana for sale (§ 11359) among other charges not relevant here.   He came to the attention of law enforcement as the result of large deposits of over $2,000 in small bills that reeked of marijuana.   He deposited $10,750 in a two-month period.  (People v. Mentch, supra, 45 Cal.4th at p. 278.)   When his residence was searched, police found 187 marijuana plants in different stages of growth.   Mentch admitted he sold marijuana, but claimed to have only sold to five medical marijuana users.   (Id. at pp. 278–279.)

One medical marijuana user testified he gave Mentch $150 to $200 a month for medical marijuana.   Another testified she had a physician’s recommendation, she obtained marijuana from Mentch every month, and paid $200 to $250 cash for an ounce of marijuana.   Mentch testified he opened Hemporium, a caregiving and consulting business to give people safe access to medical marijuana.   (People v. Mentch, supra, 45 Cal.4th at pp. 279–280.)   He said he provided medical marijuana to five qualified patients and he did not always charge them.   He said the money he received was used to pay for the cost of cultivating and distributing the medical marijuana.  (Id. at p. 280.)   A narcotics investigator testified Mentch may have personally used some of the marijuana he grew, but opined defendant’s operation was primarily run for profit.  (Id. at p. 279.)

The issue in People v. Mentch was whether defendant was entitled to an instruction on the primary caregiver defense under the CUA. (People v. Mentch, supra, 45 Cal.4th at p. 288.)   The charged offenses purportedly occurred prior to the effective date of the MMPA. (Id. at p. 278.)   After finding Mentch did not qualify for the primary caregiver defense provided by the CUA in section 11362.5 because there was no evidence he had “ ‘ “consistently assumed responsibility for the housing, health, or safety of [the patient]” ’ ” as required by section 11362.5 (People v. Mentch, supra, 45 Cal.4th at pp.   284–285)—an issue not presented here—the court concluded the defendant would not have been entitled to a defense under section 11362.765 of the MMPA either.  (People v. Mentch, supra, 45 Cal.4th at pp. 291–292.)

People v. Mentch is of limited value to our analysis.   First, it involved the application of section 11362.765, and whether Mentch qualified as a primary caregiver, issues not present here.   The applicable statute in the present matter is section 11362.775.   The conduct protected by section 11362.775 extends in appropriate cases to violations of section 11360.   Subdivision (a) of that section not only refers to transportation, but also the sale of marijuana. (§ 11360, subd. (a).)  Second, Mentch was decided prior to the Legislature’s enactment of section 11362.768 in 2010.   That section prohibits medical marijuana cooperatives, collectives, dispensaries, or establishments from operating within 600 feet of a school (§ 11362.768, subd. (b)) and applies to organizations or individuals “authorized by law to ․ distribute medical marijuana and that [have] a storefront or mobile retail outlet which ordinarily requires a business license” (§ 11362.768, subd. (e), italics added).   The Legislature therefore assumed a qualified patient or organization could, in certain circumstances, charge for medical marijuana.   Thus, the existence of “retail” storefronts or outlets.   Of course, the existence of such means of distributing medical marijuana to qualified patients or primary caregivers does not mean a dispensary, storefront, or mobile outlet may be run for profit or sell medical marijuana to those who have not received a physician’s recommendation for use of medical marijuana.  (See § 11362.765, subd. (a) [nothing in section authorizes the distribution of marijuana for profit].)

People ex rel. Trutanich v. Joseph, supra, 204 Cal.4th 1512, involved the application of a city attorney for an injunction.   Joseph operated a storefront business known as Organica.   A “confidential source” of the United States Drug Enforcment Agency (DEA) entered Orangica and purchased marijuana for $100.   Over a week later, a DEA agent went into Orangica and paid $100 for marijuana.   That same day, a search of the business turned up over 100 pounds of marijuana, over 260 pounds of edible products and beverages containing hashish oil, large amounts of hashish and hash oil, more than three pounds of psilocybin, and over $16,000 in cash.   The DEA also recovered records demonstrating Organica had approximately 1,772 “patients.”  (Id. at p. 1516.)   Opposing the injunction, Joseph argued Organica did not constitute a nuisance because his action was authorized by the CUA and the MMPA. (Id. at p. 1521.)

Like the decision in People v. Mentch, supra, 45 Cal.4th 274, the decision in People ex rel. Trutanich v. Joseph, supra, 204 Cal.App.4th 1512, has limited application here.   Without analysis, the court concluded “[n]either section 11362.775 nor section 11362.765 immunizes the marijuana sales activity conducted at Orangica.   Section 11362.775 protects group activity ‘to cultivate marijuana for medical purposes.’   It does not cover dispensing or selling marijuana.”  (People ex rel. Trutanich v. Joseph, supra, 204 Cal.App.4th at p. 1523.)   This statement does not appear to take into consideration two facts.   First, section 11362.775 specifically applies to alleged violations of section 11360, the penal statute prohibiting the sale of marijuana.   Second, as in People v. Mentch, supra, 45 Cal.4th 274, the appellate court in People ex rel. Trutanich v. Joseph did not consider the effect of section 11362.768, a Legislative enactment that inherently recognizes the lawfulness of the disbursement of medical marijuana from storefront or mobile retail outlets. (§ 11362.768, subd. (e).)

More pertinent to the present case are the decisions in People v. Urziceanu, supra, 132 Cal.App.4th 747, and People v. Jackson, supra, 210 Cal.App.4th 525.   In People v. Urziceanu, the defendant was convicted of conspiring to sell marijuana prior to the enactment of the MMPA. The appellate court concluded the CUA did not provide a defense to the conspiracy charge, but found (1) the MMPA could be applied retroactively to the defendant’s matter and (2) the MMPA provided a potential defense to the charge.  (People v. Urziceanu, supra, 132 Cal.App.4th at pp. 758–759.)

The Urziceanu court noted the MMPA was the Legislature’s initial response to the CUA’s call to provide a plan “ ‘for the safe and affordable distribution of marijuana to all patients in medical need of marijuana’ ” as set forth in section 11362.5, subdivision (b)(1)(C).  (People v. Urziceanu, supra, 132 Cal.App.4th at p. 769, italics added.)   Unlike the CUA, which limited its application to charges of possession of marijuana (§ 11357) and cultivation of marijuana (§ 11358), section 11362.775, enacted as part of the MMPA, specifically provided a defense to additional charges, including possession of marijuana for purpose of sales (§ 11359), among other charges.   One of the other statutes specifically listed in section 11362.775 is section 11360.   That section generally prohibits the transportation and sale of marijuana. (§ 11360, subd. (a).)  Notably, the effect of the MMPA generally, and section 11362.775 specifically, “represents a dramatic change in the prohibitions on the use, distribution, and cultivation of marijuana for” qualified patients and primary caregivers.  (People v. Urziceanu, supra, 132 Cal.App.4th at p. 785.)

The court further found section 11362.775’s “specific itemization of the marijuana sales law indicates it contemplates the formation and operation of medicinal marijuana cooperatives that would receive reimbursement for marijuana and the services provided in conjunction with the provision of that marijuana.”  (People v. Urziceanu, supra, 132 Cal.App.4th at p. 785.)   The court concluded the Legislature thereby “exempted those qualifying patients and primary caregivers who collectively or cooperatively cultivate marijuana for medical purposes from criminal sanctions for possession for sale, transportation or furnishing marijuana, maintaining a location for unlawfully selling, giving away, or using controlled substances, managing a location for the storage, distribution of any controlled substance for sale, and the laws declaring the use of property for these purposes a nuisance.”  (Ibid.)

That the Legislature intended such a result is further evidenced by its subsequent enactment of section 11362.768.   As noted above, this section implicitly recognizes the lawfulness of a “marijuana cooperative, collective, dispensary, operator, establishment or provider who possesses, cultivates, or distributes medical marijuana pursuant to” the MMPA, and only prohibits such entities from operating “within a 600–foot radius of a school.” (§ 11362.768, subd. (b).)  If such activities by patients and primary caregivers were unlawful altogether, there would be no need to enact a statute prohibiting such entities only within 600 feet of a school.

Like defendant, the defendant in People v. Jackson, supra, 210 Cal.App.4th 525, was charged with sale of marijuana, possession of marijuana for sale, and the prosecutor sought to foreclose the defendant from asserting a defense under the MMPA. Jackson testified at the hearing on the prosecutor’s motion.   He testified he and five other individuals cultivated medical marijuana for the 1,600 other members of the cooperative, and the cooperative did not generate profits for himself or the other growers.  (Id. at p. 529.)   Although the court found the collective was not operated for profit, it concluded that based on the large size of the organization, Jackson could not establish the organization was collectively cultivating medical marijuana within the meaning of the MMPA, and denied him a MMPA defense.  (Ibid.)

The court found a defendant is entitled to a defense under the MMPA if he or she raises but a reasonable doubt as to whether the defense applies.   The MMPA provides a defense when a defendant shows that members of the collective or cooperative:  “(1) are qualified patients who have been prescribed marijuana for medicinal purposes, (2) collectively associate to cultivate marijuana, and (3) are not engaged in a profit-making enterprise.”  (People v. Jackson, supra, 210 Cal.App.4th at p. 529.)

Important to the facts presented in the present case, the court stated the MMPA does not require all the members of the collective or cooperative to actively participate in the cultivation process and their contribution to the organization “may be limited to financial support by way of marijuana purchases from the organization.”  (People v. Jackson, supra, 210 Cal.App.4th at pp. 529–530.)   In the present case, there was evidence defendant had a physician’s recommendation to use medical marijuana, he started Herbal Run and set it up as a not for profit corporation, he acquired a sellers license from the BOE, he did not make a profit on marijuana sold to qualified Herbal Run patients, and the money provided in exchange for marijuana was given to the growers to reimburse them for their costs.   This evidence raised a reasonable doubt as to the application of the defense.   Defendant was therefore entitled to a defense under the MMPA. Whether Herbal Run was operated for profit or not, would then be determined by the jury.  (People v. Jackson, supra, 210 Cal.App.4th at p. 533;  People v. Villanueva, supra, 169 Ca.App.4th at p. 49.)

The prosecutor argued defendant was not entitled to the defense because the MMPA did not legalize the sale of medical marijuana.   He asserted that while it may be lawful for a qualified patient unable to take part in the actual tending to the plants, or to devote time and effort on behalf of Herbal Run, to support the organization strictly through monetary contributions, the prosecutor argued any monetary contribution could not be contemporaneous with an exchange of marijuana.   According to the prosecutor, such an individual would have to make his or her monetary contribution prior to the planting of the marijuana the patient would eventually be given.

The MMPA does not impose this limitation on qualified patients.   First, the purpose of the MMPA is to ensure the promise of the CUA is fulfilled and qualified patients have safe access to affordable medical marijuana.   We do not think the Legislature intended a seriously ill individual whose physician has recommended use of medical marijuana, and who is physically or otherwise unable to participate in the acts involved in cultivating medical marijuana, cannot simply pay money to his or her collective in exchange for the recommended medicine.   It would be cruel for those whose need for medical marijuana is the most dire to require that they devote their limited strength and efforts to the actual cultivation of the marijuana, and then wait months for it to grow so they can use it, or to require that they make their monetary contribution and then wait months for the marijuana to be planted, grown, and harvested before they may lawfully be provided medical marijuana.   Moreover, for some the cultivation and processing would not be completed until it was too late to provide any relief.   The MMPA does not anticipate a patient who has received a physician’s recommendation must thereafter wait months to lawfully acquire medical marijuana.

Of course, the MMPA did not make lawful all sales of marijuana.   The defense it provides is limited to those qualified patients and primary caregivers who associate together in a collective or cooperative. (§ 11362.775.) Additionally, sales for profit remain illegal.   However, given the MMPA’s purpose, one provision in the MMPA implicitly recognizes the legality of store front dispensaries, collectives or cooperatives (§ 11362.768), and another provision specifically provides a defense to violation of sections 11360 (sale or transportation of marijuana) and 11359 (possession of marijuana for sale), we conclude a member of a collective or cooperative may purchase medical marijuana from the collective or cooperative so long as the sale is not for profit.   The district attorney’s limited interpretation of section 11362.775 defeats the stated purpose of the MMPA to make access to medical marijuana easier for patients, and is contrary to a fair reading of the section.   Section 11362.775 was written to provide a defense to a charge of selling marijuana in appropriate circumstances.   Were this not the Legislature’s intent, there would have been no need to list section 11360 or section 11366 [opening or maintaining a place for the purpose of selling or giving away marijuana] as statutes to which the defense applies.

The court’s failure to permit the defense was prejudicial.  (People v. Watson (1956) 46 Cal.2d 818, 836.)   When defendant was provided the defense in the first trial, the jury was unable to reach a verdict on the possession of marijuana for sale charge.   When he was denied the defense in the second trial, the jury convicted him of possessing marijuana for sale.   The Attorney General relies on People v. Saddler (1979) 24 Cal.3d 671, 684, for the proposition that if the court erred in failing to instruct the jury on the MMPA defense, the fact that the MMPA defense instruction was given in the first case and that jury was unable to reach a verdict does not establish prejudice.   That reliance is misplaced.

Saddler involved an instruction to the effect that when a defendant testifies, the jury may draw adverse inferences from the defendant’s failure to explain or deny evidence against him.  (People v. Saddler, supra, 24 Cal.3d at p. 677.)   While the instruction was not constitutionally improper, our Supreme Court found the evidence did not support giving the instruction in that case.  (Id. at p. 675.)   Here, on the other hand, the error consisted of completely denying defendant not only a defense, but the defense he was relying upon.   If the jury accepted the defendant’s version of the facts and it had been instructed regarding the MMPA defense, “it is reasonably probable that a result more favorable to” defendant would have occurred.  (People v. Watson, supra, 46 Cal.2d at p. 836.)

III DISPOSITION

The judgment is reversed and the matter is remanded.

FOOTNOTES

1.   Defendant identified Sean as Shajad Khalaj, the treasurer of Herbal Run Marijuana Collective.

2.   The CUA defines a primary caregiver as “the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, and safety of that person.” (§ 11362.5, subd. (e).)

3.   “[T]he Attorney General shall develop and adopt appropriate guidelines to ensure the security and nondiversion of marijuana grown for medical use by patients qualified under the Compassionate Use Act of 1996.” (§ 11362.81, subd. (d).)

MOORE, ACTING P.J.

WE CONCUR: ARONSON, J. IKOLA, J.

Jackson: Cannabis dispensaries can be lawful

People v. JOVAN CHRISTIAN JACKSON

210Cal.App.4th525 • D058988 (Super. Ct. No. SCD222793)

“As we interpret the MMPA, the collective or cooperative association required by the act need not include active participation by all members in the cultivation process but may be limited to financial support by way of marijuana purchases from the organization. Thus, contrary to the trial court’s ruling, the large membership of Jackson’s collective, very few of whom participated in the actual cultivation process, did not, as a matter of law, prevent Jackson from presenting an MMPA defense.” Download as PDF:


Filed 10/24/12 CERTIFIED FOR PUBLICATION

STATE OF CALIFORNIA COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE

THE PEOPLE, Plaintiff and Respondent,
v.
JOVAN CHRISTIAN JACKSON, Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Howard H. Shore, Judge. Reversed.

Americans For Safe Access and Joseph D. Elford, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael R. Johnsen and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.

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Bonnie M. Dumanis, District Attorney of San Diego County, Laura Tanney, Craig E. Fisher and Christopher Lindberg, Deputy District Attorneys, Amicus Curiae on behalf of Respondent.

Defendant and appellant Jovan Christian Jackson was charged with the sale of marijuana and possession of marijuana for sale. Prior to his trial the People filed a motion under Evidence Code section 402 for an order preventing him from offering evidence he was entitled to the defense provided by the Medical Marijuana Program Act (MMPA), Health & Safety Code (Footnote FN1) section 11362.7 et seq. to patients who associate for the purpose of collectively cultivating medical marijuana.

At the hearing on the People’s motion, Jackson testified he, and approximately five other individuals, were actively engaged in cultivating marijuana and providing it to themselves and the approximately 1,600 other members of their medical marijuana collective. Jackson testified each member of the collective was required to show proof marijuana had been prescribed to the member by a medical professional for treatment of a medical condition. Jackson further testified the collective did not generate any profits for either himself or the other active participants. Jackson offered no testimony with respect to how the collective was governed.

The trial court found Jackson presented sufficient evidence the collective’s members were qualified patients within the meaning of the MMPA and the collective was

Footnote 1 All further statutory references are to the Health and Safety Code unless otherwise

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not operated on a for profit basis. However, the trial court found that in light of the large number of members of the collective, Jackson could not establish the collective was operated for the purpose of collectively cultivating marijuana within the meaning of the MMPA as opposed to simply distributing marijuana. Thus, the trial court granted the People’s motion and prevented Jackson from offering any defense under the MMPA. Jackson was convicted and the trial court imposed three years of formal probation.

We reverse Jackson’s conviction. In opposing the People’s motion, Jackson’s burden was not very great. Jackson was only required to produce evidence which would create a reasonable doubt as to whether the defense provided by the MMPA had been established. The defense the MMPA provides to patients who participate in collectively or cooperatively cultivating marijuana requires that a defendant show that members of the collective or cooperative: (1) are qualified patients who have been prescribed marijuana for medicinal purposes, (2) collectively associate to cultivate marijuana, and (3) are not engaged in a profit-making enterprise. As we interpret the MMPA, the collective or cooperative association required by the act need not include active participation by all members in the cultivation process but may be limited to financial support by way of marijuana purchases from the organization. Thus, contrary to the trial court’s ruling, the large membership of Jackson’s collective, very few of whom participated in the actual cultivation process, did not, as a matter of law, prevent Jackson from presenting an MMPA defense.

However, we also recognize that in determining whether a MMPA defense has been established, a trier of fact must consider whether the organization operates as a for

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profit enterprise or is a nonprofit enterprise operated for the benefit of its members. In resolving that question, an organization’s large membership and governance processes, if any, are relevant.

As we explain, where, as here, a collective has a large membership, the overwhelming number of whom do not, in any fashion, participate in the operation or governance of the collective and there is evidence of a high volume of purchases by the members, a trier of fact could reasonably conclude that, notwithstanding Jackson’s testimony to the contrary, the organization is a profit-making enterprise which distributes marijuana to customers rather than to members of a nonprofit collective organization and is therefore outside the scope of the defense offered by the MMPA. Thus, on remand, the jury should be instructed that in determining whether Jackson is entitled to a defense, the jury must determine whether the collective he participates in is a profit-making enterprise and further that in resolving that question, it should consider, in addition to other evidence of profit or loss, the size of the collective’s membership, the volume of purchases from the collective and the members’ participation in the operation and governance of the collective.

FACTUAL AND PROCEDURAL BACKGROUND

Jackson has been prosecuted twice with respect to his operation of a medical marijuana dispensary operating under the name Answerdam Alternative Care (Answerdam). In 2009 Jackson was acquitted of five counts related to the possession and sale of marijuana. At Jackson’s first trial, the jury was instructed with respect to the defense for marijuana collectives and cooperatives provided by the MMPA, in pertinent

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part, as follows: “A person is not guilty of the crimes charged in Counts 1-5 if his actions are exempted under the Medical Marijuana Program. The Medical Marijuana Program provides that qualified patients [and their designated primary caregivers] may associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes.

“A qualified patient is someone for whom a physician has previously recommended or approved the use of marijuana for medical purposes. [¶] . . . [¶]

Collectively means involving united action or cooperative effort of all members of a group.

Cooperatively means working together or using joint effort toward a common end.

Cultivate means to foster the growth of a plant.

“If you have reasonable doubt about whether, at the time of the crimes charged in Counts 1-5, the defendant was a qualified patient [or primary caregiver], and that he committed the crimes solely because he was associating within the State of California in order collectively or cooperatively to cultivate marijuana, you must find the defendant not guilty.”

Following Jackson’s first trial, the jury foreman explained the difficulty the jury faced in determining whether Jackson was entitled to an MMPA defense: “[I]t was all contingent on the medical marijuana defense and the lack of definition within the state law as far as what constitutes a collective or a cooperative . . . . So, um, just for the lack

of definition of that state law was really the key. [¶] . . . [¶] Um, the prosecution gave

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his . . . kind of narrow definition during the, the closing arguments, but there was nothing in the law that really backed that up.”

While the initial charges against Jackson were still pending, law enforcement agencies continued to investigate Jackson and Answerdam. Following his acquittal at the first trial, Jackson was charged in a new information with one count of the sale of marijuana (§ 11360, subd. (a)) and two counts of possession of marijuana for sale

(§ 11359). Those allegations were based on activity which occurred after the conduct which gave rise to the first trial.

As we indicated at the outset, prior to trial on the second information, the People moved under Evidence Code section 402 for an order preventing Jackson from offering an MMPA defense. At the hearing the People presented testimony from one of the investigators who testified that he never observed any cultivation taking place at the Answerdam dispensary. The People also offered testimony from a member of the collective who testified that although he purchased marijuana at the dispensary, he never saw it being grown there and he never participated in its cultivation.

For his part Jackson testified at the Evidence Code section 402 hearing that marijuana for Answerdam was grown at another location, that he and four or five other members of the collective took part directly in cultivating the marijuana and that each member of the collective was required to produce a physician’s recommendation that they use marijuana to treat a diagnosed illness or condition. According to Jackson, at one time or another approximately 1,676 qualified patients had joined Answerdam by way of paying a membership fee and signing a membership form. Jackson further testified that

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Answerdam was not a profit-making business and that he and others were paid only for the expenses they incurred in cultivating marijuana and operating the dispensary. Jackson conceded that there were no meetings of the Answerdam membership and no attempts to contact them with respect to operation of the collective.

In considering the People’s motion, the trial court found there was not enough information to determine whether Answerdam was operated as a for profit enterprise and therefore the trial court would not rely on that factor in ruling on the People’s motion. In nonetheless granting the motion and excluding evidence of the defense, the trial court stated: “So assuming there was cultivation going on and that at least some members were involved, that still leaves us with the evidence that was presented that there were well over 1,000 people involved in this so-called collective or cooperative, and a very, very small percentage of those─a miniscule percentage was involved in the act of cultivation.

“That certainly does not in any way establish that the association was for the purpose of cultivation. It only establishes that some of the people may have been cultivating. That’s very different. Obviously, as I pointed out, all marijuana is cultivated. If everyone who distributed marijuana was a cultivator, then there would be no need for the defense.

“It’s clear that, as I said, the statute says that the association has to be for the purpose of cultivating marijuana. There is no evidence in the record that that was the purpose of this association. Indeed, the evidence points to quite the contrary, that the purpose of the association was for the distribution of marijuana that was cultivated by others whether or not members.

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“And in my mind, there’s no plausible basis on which this defense could go to the jury. It could not possibly raise a reasonable doubt using the language of [section] 11362.75.”

In light of the trial court’s ruling on the People’s motion, at the second trial no evidence with respect to the MMPA defense was offered and no instruction on the issue was given. Jackson was, as we indicated, convicted on all three counts and given three years of formal probation.

DISCUSSION I

We begin our consideration of Jackson’s contention the trial court erred in granting the People’s motion by noting the modest burden Jackson bore in opposing the People’s motion. When the closely related defenses to marijuana possession offenses offered by the Compassionate Use Act (CUA) (§ 11362.5 et seq.) are at issue, the cases have uniformly held that the defendant need only raise a reasonable doubt as to whether the elements of the defense have been established. (See e.g., People v. Jones (2003) 112 Cal.App.4th 341, 350; see also People v. Mower (2002) 28 Cal.4th 457, 476-482.) The defendant’s limited burden is based on the conclusion that CUA defenses turn on the nature of the defendant’s conduct rather than a collateral matter, such as when an entrapment defense is offered. (People v. Mower, supra, 28 Cal.4th at pp. 476-482.) Because the defenses provided by the MMPA, like those set forth in the CUA, relate directly to the nature of the defendant’s conduct as opposed to collateral matters, those defenses only require that a defendant raise a reasonable doubt as to whether the elements

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of the defenses have been proven. In determining whether that minimal burden has been met, “the trial court must leave issues of witness credibility to the jury.” (People v. Villanueva (2008) 169 Cal.App.4th 41, 49.)

II

The court in People v. Colvin (2012) 203 Cal.App.4th 1029 (Colvin) recently

discussed the defenses offered by the MMPA at some length in a context very similar to the circumstances set forth in the record here. As the court in Colvin recognized, the defenses provided by the MMPA grow out of adoption by the people of Proposition 215: “In 1996, voters passed Proposition 215, the Compassionate Use Act of 1996 (CUA;

§ 11362.5). One purpose of the CUA was to ‘ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit from the use of marijuana in the treatment’ of illnesses for which marijuana provides relief. [Citations.] A second purpose was to ensure that patients and their primary caregivers who obtain and use medical marijuana are not subject to criminal prosecution or sanction. [Citation.] The CUA therefore provided that section 11357, relating to the possession of marijuana, and section 11358, relating to the cultivation of marijuana, ‘shall not apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient’ upon a doctor’s recommendation. [Citation.] The CUA thus provided a limited immunity from prosecution, including a defense at trial. [Citation.]

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“In response to the CUA’s encouragement ‘to implement a plan to provide for the safe and affordable distribution of marijuana to all patients’ in need of it [citation], our Legislature enacted the MMPA (§ 11362.7 et seq.). Through the MMPA, the Legislature sought to ‘(1) [c]larify the scope of the application of the act and facilitate the prompt identification of qualified patients and their designated primary caregivers in order to avoid unnecessary arrest and prosecution of these individuals and provide needed guidance to law enforcement officers. [¶] (2) Promote uniform and consistent application of the act among the counties within the state. [¶] (3) Enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects.’ [Citation.] To these ends, section 11362.775 of the MMPA provides, ‘Qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, 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 under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570.’ [Citation.]” (Colvin, supra, 203 Cal.App.4th at pp. 1034-1035.)

In Colvin the defendant was the operator of two marijuana dispensaries which together had 5,000 members. Based on his transportation of marijuana from one dispensary to the other, the defendant was charged with the sale or transportation of marijuana as well as with the possession of concentrated cannabis.

The defendant in Colvin waived a jury trial and at the close of the prosecution case moved for acquittal, asserting the defense provided by section 11362.775. The trial court

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found the defendant was a bona fide patient and that the dispensaries he operated were legitimate and complied with the MMPA. Nonetheless, the trial court found transportation from one dispensary to another had nothing to do with cultivation and thus the trial court concluded a section 11362.775 defense was not available. The trial court then found the defendant guilty of both marijuana offenses. The Court of Appeal reversed and found that the defense applied.

In rejecting the trial court’s reasoning, the court in Colvin stated: “It is unclear what the trial court meant when it said that Colvin’s transportation of marijuana was unrelated to the cultivation process and was outside what section 11362.775 allows. There was no evidence that Colvin’s transportation of one pound of marijuana was for anything other than [his Holistic dispensaries]. To the extent the trial court ruled as it did because it believed that only cooperative or collective cultivators of marijuana can transport the product, Colvin/Holistic is a cultivator: Holistic has three on-site ‘grow rooms,’ which the LAPD visited. Fourteen members of Holistic also grow marijuana for Holistic offsite. All of the marijuana Holistic distributes is from a cooperative member; none of it is acquired from an outside source. Thus, even under a reading of section 11362.775 limiting transportation of marijuana only to cooperatives that cultivate it, then Colvin was entitled to the immunity.” (Colvin, supra, 203 Cal.App.4th at p. 1037.)

As an alternative to the trial court’s reasoning, the Attorney General argued, as she does here, “that section 11362.775 does not condone ‘a large-scale, wholesale-retail marijuana network’ like Holistic, which has approximately 5,000 members. The Attorney

General argues that a collective or cooperative cultivation ‘must entail some united action

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or participation among all those involved, as distinct from merely a supplier-consumer relationship.’ There must be, the Attorney General suggests, ‘some modicum of collaboration’ in which qualified patients and caregivers ‘ “come together” ‘ in ‘some way.’ ” (Colvin, supra, 203 Cal.App.4th at p. 1037.)

The court in Colvin squarely rejected the Attorney General’s argument: “The evidence here was Holistic obtained its business licenses, was a nonprofit corporation, and was in the process of complying with then-applicable ordinances. The trial court thus found that Holistic was a ‘legitimate’ dispensary, which implies that the court believed Holistic was complying with the appropriate laws.

“The Attorney General does not argue otherwise, instead maintaining that a medical marijuana cooperative seeking the protections of section 11362.775 must establish that some number of its members participate in the process in some way. The Attorney General does not specify how many members must participate or in what way or ways they must do so, except to imply that Holistic, with its 5,000 members and 14 growers, is simply too big to allow any ‘meaningful’ participation in the cooperative process; hence, it cannot be a ‘cooperative’ or a ‘collective’ in the way section 11362.775 intended. But this interpretation of section 11362.775 would impose on medical marijuana cooperatives requirements not imposed on other cooperatives. A grocery cooperative, for example, may have members who grow and sell the food and run a store out of which the cooperative’s products are sold. But not everyone who pays a fee to become a member participates in the cooperative other than to shop at it.” (Colvin, supra, 203 Cal.App.4th at pp. 1038-1039.)

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In finding the defendant had established the defense, the court in Colvin also noted

that in important respects the defendant and his dispensary had complied with guidelines (FN2) promulgated by the Attorney General: “Holistic, for example, is a nonprofit registered with the City of Los Angeles in 2007, and Colvin took steps to comply with applicable ordinances (Guidelines, § IV.A.1,2, B.1,2, pp. 8, 9 [advising cooperatives to incorporate under the Corp. Code or Food & Agr. Code and to obtain applicable business licenses and permits]); Holistic requires members to fill out membership forms, assigns each member a number to track prescription expiration, and keeps a record of members’ medical problems and each time a member returns (id., § IV.B.3, p. 9 [potential members should complete a written membership application, their status should be verified, membership records should be maintained, and expiration of prescriptions should be tracked]); all money Holistic receives from members goes back into the cooperative (id., § IV.B.5, 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’]); Holistic bases membership fees on the cost to cover the member’s needs (id., § IV.B.6, p. 10 [marijuana may be allocated based on fees that are reasonably calculated to cover overhead costs and operating expenses]); Colvin was transporting only one pound of marijuana (id., § IV.B.7, p. 10 [‘collectives and cooperatives may cultivate and

Footnote 2: California Attorney General’s Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use (Aug. 2008) [http:// ag. ca. gov/ cms_ attachments/ press/ pdfs/ n 1601_ medical marijuana guidelines. pdf], as of February 23, 2012, (Guidelines). The Guidelines are entitled to considerable weight but do not bind us. (People v. Hochanadel (2009) 176 Cal.App.4th 997, 1011 (Hochanadel).)

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transport marijuana in aggregate amounts tied to its membership numbers’]); and Holistic employs security measures, namely, it keeps new applicants in a ‘primary holding’ area and verifies their information before admitting them and has no more than two to three pounds of marijuana on the premises at any given time (id., § IV.B.8, p. 11 [collectives and cooperatives should take security measures to protect patients and surrounding neighborhoods]). Thus, to the extent these guidelines have any weight, they contemplate cooperatives like Holistic.” (Colvin, supra, 203 Cal.App.4th at pp. 1040-1041.)

The court in Colvin also relied on the holding in People v. Urziceanu (2005) 132 Cal.App.4th 747, 785 (Urziceanu). In Urziceanu the court found that a defendant was entitled to an instruction on the MMPA defense notwithstanding the fact that his marijuana collective had several hundred members. In doing so the court stated section 11362.775 represents “a dramatic change in the prohibitions on the use, distribution, and cultivation of marijuana for persons who are qualified patients or primary caregivers . . . . Its specific itemization of the marijuana sales law indicates it contemplates the formation and operation of medicinal marijuana cooperatives that would receive reimbursement for marijuana and the services provided in conjunction with the provision of that marijuana.” (Urziceanu, supra, 132 Cal.App.4th at p. 785.)

The Attorney General asks that we reject the relatively broad interpretation of the MMPA adopted by the courts in Colvin and Urziceanu. However, as was the case in Colvin, the Attorney General is unable to point to any portion of the MMPA itself which suggests the Legislature intended to put any numerical limits on the size of a collective or cooperative. As the court in Colvin recognized, there is nothing in the MMPA which

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suggests where such a numerical limit should be placed and in any event a numerical limit would be somewhat at odds with one of the express purposes of the MMPA, to wit: enhancing access to medical marijuana. (Stats. 2003, ch. 875, § 1, subd. (b), pp. 6422- 6423.)

The only authority the Attorney General offers, People ex rel. Trutanich v. Joseph (2012) 204 Cal.App.4th 1512, 1523, does not consider the express terms of the MMPA, but simply makes the conclusory statement that section 11362.775 “does not cover dispensing or selling marijuana.” That statement is of course inconsistent with the Attorney General’s own guidelines, which appear to contemplate that collectives and cooperatives will dispense marijuana and that there will be an exchange of cash consideration. (See Guidelines, supra, § IV.B.5, p. 10.) It is also inconsistent with the Legislature’s recent addition of section 11362.768 to the MMPA. Section 11362.768 provides that “a medical marijuana cooperative, collective, dispensary, operator, establishment, or provider that is authorized by law to possess, cultivate, or distribute medical marijuana and that has a storefront or mobile retail outlet which ordinarily requires a local business license” may not be located within a 600-foot radius of a school. (§ 11362.768, subd. (e), italics added.) In enacting this limitation, the Legislature seemed to express its understanding that contrary to the court’s statement in People ex rel. Trutanich v. Joseph, the MMPA permits retail dispensaries.

The Attorney General’s Guidelines and the adoption of section 11362.768 also foreclose adoption of the even narrower interpretation offered by the district attorney in her amicus brief. The district attorney argues that all members of a collective or

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cooperative must actively participate in cultivation of marijuana to bring the organization within the terms of section 11362.76. Such a strict limitation on the means by which authorized collectives and cooperatives provide medical marijuana to their members is entirely inconsistent with the conduct permitted under the Attorney General’s Guidelines and expressly contemplated in the Legislature’s most recent amendments to the MMPA.

III

Given the limited burden placed on Jackson at the Evidence Code section 402 hearing and the holding in Colvin, with which we agree, we must conclude the trial court erred in granting the People’s motion. In this regard we place particular emphasis on the trial court’s express unwillingness to determine whether Answerdam was operated for a profit. Assuming then, as did the trial court, that Answerdam was not operated for profit, and accepting Jackson’s testimony that all members were qualified medical marijuana patients, the fact Answerdam has a large membership did not prevent Jackson from offering a defense under section 11362.775. Jackson presented enough evidence to raise a reasonable doubt as to whether Answerdam was a collective or cooperative project within the meaning of section 11362.775.

In light of Jackson’s acquittal in the first trial at which an MMPA defense instruction was given, there can be no serious dispute that the failure to permit him to offer such a defense at the second trial was prejudicial and that we must therefore reverse Jackson’s conviction.

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IV

Because an MMPA defense will no doubt arise in any further proceedings in this

case, as well as others, and because the parameters of the MMPA defense have not been set forth in a definitive manner, we are obliged to consider the limits of the defense and provide the trial court and the parties principles which will govern jury instructions on remand.

While we agree with the holding in Colvin that the relatively large size of a collective or cooperative will not per se take it outside the scope of section 11362.775, in any given case the size of an enterprise may nonetheless be quite relevant in determining whether a defendant’s participation is protected by the MMPA. In this regard we note that although section 11362.775 itself does itself require that collective or cooperative projects be nonprofit enterprises, there is little doubt the Legislature did not intend to authorize profit-making enterprises. The clearest expression of that limitation is set forth in the basic immunity provided to individual patients and their care providers by the closely related provisions of section 11362.765, subdivision (a): “However, nothing in this section shall authorize the individual to smoke or otherwise consume marijuana unless otherwise authorized by this article, nor shall anything in this section authorize any individual or group to cultivate or distribute marijuana for profit.” (Italics added.) The nonprofit limitation on group cultivation in section 11362.765, subdivision (a) would make little, if any, sense, if it did not also apply to collective or cooperative projects

permitted under section 11362.775. (See Bode v. Los Angeles Metropolitan Medical

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Center (2009) 174 Cal.App.4th 1224, 1237 [“[P]rovisions relating to the same subject matter or that are part of the same statutory scheme must be read together and harmonized to the extent possible.”]; see also Qualified Patients Assn. v. City of Anaheim (2010) 187 Cal.App.4th 734, 747 [collective and cooperatives under section 11362.775 must be nonprofit]; Hochanadel, supra, 176 Cal.App.4th at p. 1018 [same]; Guidelines, p. 9 [same].) Thus, when a defense under the MMPA is offered, the People are entitled to an instruction advising the jury that a collective or cooperative protected by the MMPA must be a nonprofit enterprise.

Plainly, in determining whether a collective or cooperative is a nonprofit

enterprise, its establishment as such under Corporations Code 12201 (FN3) and any financial records of the enterprise will be relevant, including in particular any processes or procedures by which the enterprise makes itself accountable to its membership. An operator’s testimony as to the nonprofit nature of the enterprise is of course also relevant.

However, by the same token the absence of fairly complete financial records and any accountability to members will also be relevant, especially when combined with a large number of members and evidence of a high volume of business. In the latter circumstance a trier of fact could reasonably conclude that, notwithstanding an operator’s testimony, a large membership, high volume enterprise was in fact operated for profit. Thus, in addition to an instruction that an enterprise must be nonprofit, the People are

Footnote 3: Corporations Code section 12201 permits establishment of consumer cooperatives which are “democratically controlled and are not organized to make a profit for themselves, as such, or for their members, as such, but primarily for their members as patrons (Section 12243).”

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entitled to an instruction that in considering whether a collective or cooperative is nonprofit, a jury may consider the testimony of the operators of the enterprise, its formal establishment as a nonprofit organization, the presence or absence of any financial records, the presence or absence of processes by which the enterprise is accountable to its members, the size of the enterprise’s membership and the volume of business it conducts.

Of course the jury should also be instructed that a defendant is only required to raise a reasonable doubt as to whether the elements of the defense, including the nonprofit element, have been proven. (See People v. Jones, supra, 112 Cal.App.4th at p.

350.) (FN4)

Footnote 4: General sent to the Legislature. The letter was not presented in the trial court. (See

We deny Jackson’s request for judicial notice of a recent letter the Attorney

Haworth v. Superior Court (2010) 50 Cal.4th 372, 379, fn. 2.)

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DISPOSITION

The judgment of conviction is reversed and remanded for further proceedings

consistent with the views we have expressed.

WE CONCUR:

BENKE, Acting P. J.

McDONALD, J.

McINTYRE, J.

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