This page is a work in progress; more cases will be added. 12/19/2014
|People v. Baniani||8/22/2014|| Defendant, a founding member of a medical marijuana cooperative, was charged with a sale of and possession of marijuana for sale. At trial, Defendant was denied a defense under the Medical Marijuana Program Act (“MMPA”) and convicted of possessing marijuana for sale.|
The Court of Appeals reversed the conviction holding, that under the MMPA, 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.
(Draft case summary for illustrative purposes; may change upon in-depth case review)
|City of Garden Grove v. Superior Court||11/28/2007||City police officers stopped the real party in interest for failing to yield at a red light and found less than an ounce of marijuana. The real party in interest the presented the city police officers a physician’s referral to use marijuana for medical purposes. Nonetheless, the officers seized the marijuana and cited the real party in interest for unlawfully possessing less than one ounce of the drug while driving—Vehicle Code section 23222(b). After calling the physician to verify the recommendation, the prosecutor dismissed the drug charge but opposed the real party in interest’s request to have the marijuana returned. The trial court therefore ordered the Garden Grove Police Department to return the marijuana. On appeal, the city argued its police force has the right to enforce federal law on its own accord by seizing and destroying the marijuana.|
To begin, The CUA and MMPA make certain marijuana-related violations of the Vehicle Code lawful. As a result, marijuana’s prohibition under federal law does not allow law enforcement to not return confiscated marijuana legally possessed under state law. First, under Health & Safety Code section 11473.5 unless the substance’s possession is also prohibited under state law, the state has no authority to invoke the sanction of destruction set forth in the statute. Second, although the supremacy clause grants Congress the power to preempt state law, in enacting the Controlled Substances Act (“CSA”), Congress made it clear it did not intend to preempt the states on the issue of drug regulation. What is more, due process of the law requires law enforcement to return confiscated marijuana legally possessed under state law. It is beyond dispute that the right to regain possession of one’s property is a substantial right and continued official retention of legal property with no further criminal action pending violates the owner’s due process rights.
|People v. Strasburg||3/22/2007||A law enforcement officer approached the driver’s side of defendant’s car and immediately smelled the odor of marijuana. The defendant admitted to the law enforcement officer he had been smoking marijuana and told the law enforcement officer he had a medical marijuana card. The law enforcement officer refused to look at the card and continued the investigation. Before trial, the defendant filed a motion to suppress, on the grounds that the law enforcement officer lacked probable cause to search his car because defendant was allowed to possess marijuana under the Compassionate Use Act (“CUA”). The trial court denied the motion to suppress, stating: “I believe that once an officer smells marijuana coming from a car that officer can search the car for the marijuana, and I haven’t been given any authority that possessing a medical marijuana card deprives the officer of the right to continue with that investigation.”|
Because the status of qualified patient does not confer an immunity from arrest, law enforcement officers may detain, search, and arrest a qualified patient for marijuana offenses where they have probable cause when they have reason to believe that the arrestee does not possess marijuana for his personal medical purposes. Under the facts and circumstances of this case, the law enforcement officer had probable cause to search defendant’s car for marijuana after he smelled the odor of marijuana. In other words, a patient’s possession of a valid medical marijuana card does not negate the probable cause for detainment, search, and arrest provided by the odor or presence of marijuana.
|People v. Wright||11/27/2006||Law enforcement stopped the defendant while in his vehicle. After a search revealed found six small baggies of marijuana, two large bags of marijuana, and an electronic scale, the defendant was charged with possessing marijuana for sale and transporting marijuana. The defendant’s physician testified that he had recommended that defendant use marijuana to alleviate his medical problems. Nevertheless, the trial court ruled that the Compassionate Use Act (“CUA”) did not apply in a transportation case. The jury convicted defendant of both possessing marijuana for sale and transporting marijuana. In the Court of Appeal, a conflict arose regarding whether and under what circumstances a defense under the CUA applies to the charge of transportation, resulting from the conflicting precedent of People v. Trippet and People v. Young. Moreover, while the case was pending review by the Supreme Court of California, the Legislature enacted the Medical Marijuana Program Act (“MMPA”).|
Under the MMPA, either the holder of an identification card or a qualified patient may assert the CUA as a defense to a charge of transporting marijuana. However, Trippet’s test—whether “the quantity transported and the method, timing and distance of the transportation are reasonably related to the patient’s current medical needs”—survived the enactment of the MMPA and remains a useful analytic tool. As a result, the trial court’s failure to instruct the jury on the CUA defense to the charge of transportation of marijuana does not constitute a prejudicial error where a jury convicts a defendant under the proper instruction to the charge of possession of marijuana for sale.
|People v. Urziceanu||9/12/2005||The defendant was a qualified patient under the Compassionate Use Act (“CUA”) and started a collective (“FloraCare”) to provide medicinal marijuana in a safe environment and at affordable prices. Sometimes marijuana was given away to members for free. However, there was a list for some marijuana products with suggested donation values. As a result, law enforcement served a search warrant on defendant’s home and discovered several different marijuana gardens that contained 159 plants. Afterwards, the defendant was charged with cultivation of marijuana, possession of marijuana for purposes of sale, distribution of marijuana, and conspiracy to sell marijuana. The jury found defendant guilty of conspiracy to sell marijuana. Following the defendant’s conviction, the legislature enacted the Medical Marijuana Program Act (“MMPA”).|
The MMPA does provide a defense for collective cultivation and distribution of medical marijuana. The MMPA contains Health & Safety Code section 11362.775. Thus, the Legislature 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. Moreover, even without the MMPA, a good faith mistaken belief that the formation of a medical marijuana collective is legal due to the vagueness of the CUA does provide a defense to a conviction of conspiracy to sell marijuana.
|People v. Frazier||4/20/2005||In the course of multiple searches of the defendant’s home, law enforcement discovered a large amount of marijuana and a garden area on the property used to grow the marijuana. However, prior to the searches defendant, his wife, his step-son, and his ex-sister-in-law all received approval from a physician to use marijuana, and the wife, step-son, and ex-sister-in-law all asked or gave permission for the defendant to grow marijuana for them. The jury found the defendant guilty of cultivation of marijuana and possession of marijuana for sale on a jury instruction that stated under the Compassionate Use Act (“CUA”) “the burden is upon the defendant to raise a reasonable doubt as to guilt of the unlawful possession or cultivation of marijuana” and “the quantity of marijuana possessed or cultivated, and the form in which it was possessed were reasonably related to the patient‘s or defendant’s then current medical needs” but omitted a statement that “a primary caregiver is a person who consistently grows and supplies physician approved marijuana for a medical marijuana patient to serve the health needs of that patient”.|
Under the CUA, a defendant may not merely point to the defense, but has the burden to raise a reasonable doubt about the facts underlying this defense. Because the CUA only provides an affirmative defense, there is no constitutional imperative that a State must disprove beyond a reasonable doubt every fact constituting the defense. Moreover, (1) the trier of fact should consider whether the amount of marijuana possessed or cultivated “reasonably related to the patient’s current medical needs” rather than the patient’s “own personal medical purposes” and (2) a jury instruction under the CUA is not erroneous if it does not define “primary caregiver” as a person who consistently grows and supplies physician approved marijuana for a medical marijuana patient to serve the health needs of that patient.
|Chavez v. Superior Court||9/30/2004||A jury had convicted Patient of selling and transporting marijuana. While on bail pending appeal of the conviction, Patient was arrested and cultivation of marijuana and possession of marijuana for sale, after a search of Patient’s home had uncovered 46 live marijuana plants, 10 pounds of marijuana drying in a shed, and approximately 4.5 pounds of cultivated marijuana. After the Court of Appeal affirmed the first conviction, the second case was dismissed. Patient then filed a motion for return of property, including five pounds of marijuana, and provided the court with a physician’s approval to use marijuana to treat a degenerative spinal disease. The trial court denied Patient’s motion for return of property after finding ‘the amount of marijuana that was possessed exceeds the amount for personal medical use.|
The Compassionate Use Act (“CUA”) does not require a court to order the return of a reasonable amount of confiscated marijuana where the amount originally possessed by a patient exceeded a reasonable amount. Under Health & Safety Code section 11473.5 all seizures of controlled substances shall be destroyed by order of the court, unless the court finds that the controlled substances were lawfully possessed by the defendant. When a qualified patient possesses and cultivates marijuana in excess of his medical needs his possession and cultivation of marijuana cannot be deemed lawful and section 11473.5 requires its destruction.
|People v. Spark||8/2/2004||The defendant was charged with cultivation of marijuana. At trial, the physician testified that he conducted an examination and determined appellant suffered from back pain but acknowledged that, when he examined, he did not review any of the defendant’s medical records and used only his hands and his eyes when examining the defendant. The defendant was found guilty of cultivation of marijuana after the jury was instructed that an as element for a defense under the Compassionate use Act (“CUA”), the defendant must prove he was “seriously ill”.|
A defense under the CUA does not require a defendant to present evidence that he or she was “seriously ill”. A reference to “seriously ill” is omitted from the provision of the CUA that provides a defense to patients. Moreover, the only reference “seriously ill” contains a list of specified illnesses or conditions that ends with a catchall phrase “or any other illness for which marijuana provides relief.” A physician’s determination on this medical issue is not to be second-guessed by jurors who might not deem the patient’s condition to be sufficiently “serious”.
|People v. Konow||4/22/2004||Following the enactment of the Compassionate Use Act (“CUA”), the defendants formed and operated a for-profit corporation to distribute, and sell, marijuana to qualified patients and primary caregivers. Despite press statements that defendants “seemed to be complying with the spirit and letter of a very badly drafted law”, law enforcement instituted sting operations against defendants and, subsequently, defendants were charged with sale of marijuana. Following an initial dismissal of the charges by the magistrate, the superior court reinstated the complaint. On remand to the magistrate, defendants invited the magistrate to dismiss the complaint, on his own motion, in furtherance of justice under Penal Code section 1385. The magistrate declined the invitation, believing that by being compelled to reinstate the complaint under section 871.5, he was precluded from ordering dismissal on that basis. Back in the superior court, the judge dismissed the complaint concluding the magistrate erroneously and prejudicially failed to consider whether to dismiss the complaint in furtherance of justice under section 1385 and thereby denied defendants a substantial right.|
A superior court may set aside an information when the magistrate erroneously and prejudicially failed to consider whether to dismiss the complaint in furtherance of justice under Penal Code section 1385, even though a defendant has no right formally to make a motion requesting that the magistrate exercise such power. A defendant is denied a substantial right in the context of section 1385 when the magistrate does not clearly indicate an unwillingness to order dismissal on that basis.
|Bearman v. Superior Court||4/1/2004||Physician provided Patient a letter approving Patient’s use of medical marijuana for symptoms of migraines and attention deficit disorder. Following an investigation (but not arrest) of Patient while visiting a recreation area, a park ranger sent a copy of Physician’s letter to the Medical Board of California and asked for “appropriate actions.” Afterwards, the Medical Board initiated an investigation and sought Patient’s medical records. After both Patient and Physician refused to provide the records, the Medical Board filed a petition to compel Physician’s compliance with the subpoena. The trial court found there were sufficient grounds to support the investigation and the subpoena because Physician’s letter appeared to prescribe marijuana for the treatment of attention deficit disorder, which is not one of the illnesses listed in section the Compassionate Use Act (“CUA”). On appeal, the Medical Board also argued that Patient also waived his right to privacy by voluntarily showing the park rangers Physician’s letter.|
Neither the mere suspicion of unethical conduct based solely on the fact that a physician approves or recommends marijuana nor the fact that a physician approves or recommends marijuana for an illness not listed in the CUA provides the Medical Board good cause to subpoena patient records. A patient does not waive their right to privacy by voluntarily presenting a physician’s recommendation to use marijuana to law enforcement. By passing the CUA, the voters intended to facilitate the medical use of marijuana and interpreting the CUA as necessitating the waiver to enjoy its protection would hinder rather facilitate the voters’ intent.
|People v. Tilehkooh||12/8/2003||The People sought to revoke the defendant’s probation following a positive drug test for THC. However, the defendant had a physician’s recommendation to use marijuana and attempted to assert an affirmative defense under the Compassionate Use Act (“CUA”). The trial court found the CUA inapplicable because the defendant was not “seriously ill,’ was not in “imminent danger,” had not established a “legal alternative” to marijuana use. Moreover, on appeal the People claimed that the CUA is not a defense to a revocation of probation and that, in any event, the possession of marijuana violated a condition of defendant’s probation that he obey federal criminal laws.|
The CUA provides a defense to probation revocation where there is no claim that the probationer’s conduct endangers others or that the probationer diverted marijuana for nonmedical purposes. Moreover, the condition of probation to obey federal criminal laws does not prevent a probationer from asserting a defense under the CUA; the California courts long ago recognized that state courts do not enforce the federal criminal statutes. Also, a “patient” does not have to prove they are “seriously ill” and were in “imminent danger” and could not establish a “legal alternative” to marijuana use to assert a defense under the CUA since the medical necessity defense is not the measure of the right to obtain and use marijuana for medical purposes granted by the CUA.
|People v. Jones||9/30/2003||The defendant testified that when he asked his physician whether he should try marijuana for his migraine headaches, his physician said, “It might help, go ahead.” Despite this testimony, the trial court precluded the defendant from presenting a defense under the Compassionate Use Act (“CUA”) because there was nothing to indicate that the doctor approved the defendant’s marijuana use.|
Under the CUA, a physician gives his or her “approval” of a patient’s marijuana use if the physician expresses to the patient a favorable opinion of marijuana use for treatment of the patient’s illness.
|People v. Galambos||12/26/2002||Following the passage of the Compassionate Use Act (“CUA”), the defendant began growing a crop of marijuana and agreed all the marijuana that the defendant grew would be designated for the Oakland Cannabis Buyers’ Cooperative for medical use. At trial, the defendant sought a jury instruction that marijuana could be legally provided under the CUA to patients through patients’ cooperatives or dispensaries. However, the trial court rejected the instruction.|
The CUA does not offer a defense to those that provide marijuana to qualified patients through patients’ cooperatives or dispensaries. The CUA only sets forth two classes of persons qualified for the exception: patients and their primary caregivers, not suppliers to marijuana buyers’ cooperatives.
|People v. Mower||7/18/2002||Following a probation search of the defendant’s home while he was hospitalized for diabetes-related complications which discovered 31 marijuana plants, the defendant was arrested and charged with possession and cultivation of marijuana. The trial court instructed the jury that the Compassionate Use Act (“CUA”) provided the defendant a defense, but the defendant must prove the defense by the preponderance of the evidence. On appeal, the defendant argued that the CUA grants a “complete” immunity, shielding him from prosecution and arrest, and requiring law enforcement officers to conduct an adequate investigation prior to arrest.|
The CUA does not provide a complete immunity from prosecution that would require law enforcement officers to conduct an adequate investigation prior to arrest. Rather, the CUA provides 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. Although the burden of proof is on a defendant to establish the facts underlying a defense under the CUA, a defendant is required merely to raise a reasonable doubt as to the existence of the facts establishing the defense.
|People v. Fisher||3/14/2002||Law enforcement obtained a warrant to search the defendant’s residence following a flyover of the defendant’s property observing at least three marijuana plants. However, before law enforcement could execute the warrant, the defendant and presented the officers a physician’s recommendation to use medical marijuana in accordance with the Compassionate Use Act (“CUA”).|
Presentation of a valid physician’s recommendation under the CUA does not require law enforcement to abandon a search for marijuana authorized by a search warrant because the CUA only provides an affirmative defense to be proven by the defendant at trial.
|People v. Bianco||10/31/2001||The defendant pleaded guilty to cultivation of marijuana. Before sentencing, the defendant obtained a physician’s recommendation for the medical use of marijuana. Nevertheless, at sentencing, the trial court conditioned the defendant’s that he not use or possess marijuana.|
A physician’s recommendation for the medical use of marijuana under the Compassionate Use Act (“CUA”) does not prevent the imposition a probation condition not to use or possess marijuana because it is a standard condition of probation to require the probationer to obey “all” laws and possession of marijuana is a crime under federal law.
|People v. Young||9/13/2001||During a traffic stop, in which law enforcement discovered over four ounces of marijuana in the defendant’s vehicle, the defendant presented a valid physician’s recommendation and approval for the use of medical marijuana. Nevertheless, the defendant was charged and convicted of transportation of marijuana.|
The Compassionate Use Act (“CUA”) does not provide a defense to prosecution for transportation of marijuana. The statute on its face exempts only possession and cultivation and fails to mention transportation. As a result, the “reasonably related to the patient’s current medical needs” standard does not apply to transportation of marijuana in a vehicle.
|People v. Rigo||1/21/1999||At the time of arrest, the defendant used marijuana for medical purposes but did not have an authorization from a doctor. After his arrest, a doctor authorized the defendant’s use of medical marijuana. Nevertheless, the defendant was convicted for cultivation of marijuana.|
The defense for the use of medical marijuana under the Compassionate Use Act (“CUA”) is not available if a physician’s recommendation or approval is obtained after arrest.
|People ex rel Lungren v. Peron||8/15/1997||Following the passage of the Compassionate Use Act (“CUA”), the defendants moved to modify a preliminary injunction enjoining the provision of medical marijuana to patients through the San Francisco Cannabis Buyers Club. The trial court modified the injunction on the grounds that the defendants provided medical marijuana on a non-profit basis and qualified as “primary caregivers” under the CUA.|
The CUA protections do not extend to the provision of medical marijuana on a non-profit basis since the CUA’s provisions do not include the criminal provisions relating to the sale and the giving away of marijuana. Because a patient may patronize the Cannabis Buyers Club only one time, the defendants’ designation as “primary caregivers” did not meet the consistency required under the CUA.
|People v. Trippet||12/12/1997|| Following Defendant’s conviction for possession of marijuana and transportation of marijuana, the voters enacted the Compassionate Use Act (“CUA”). On appeal, Defendant argued that the CUA provides a defense to the prosecution.|
The CUA provides to prosecution for possession of marijuana and transportation of marijuana, so long as the amount possessed and the amount transported are reasonably related to the patient’s current medical needs. The “patient’s current medical needs” is a question of fact to be determined by the trier of fact.