Key Medical Marijuana Decisions – People v. Frazier

Also see: Key Medical Marijuana Decisions by California Courts

People v. Frazier

Citation 128 Cal. App. 4th 807, 27 Cal. Rptr. 3d 336 (2005)
PDF of Full Opinion https://www.canorml.org/legal/frazier.pdf
Fact Summary 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”.
Summary Rule of Law 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.
Facts & Procedure In the course of multiple searches of the defendant’s home, law enforcement discovered, inter alia, a large amount of marijuana and a garden area on the property used to grow the marijuana. 128 Cal. App. 4th at 813. “Based on the large quantity of marijuana, the sophistication of the growing operation, and the presence of firearms, [law enforcement] testified this marijuana was possessed for sale.” Id. 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. Id. at 813−14. The jury found the defendant guilty of, inter alia, cultivation of marijuana and possession of marijuana for sale on an instruction that stated under the 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’”. Id. at 812, 815, 821, 823, 824 (citing Cal. Jury Instr. Crim. 12.24.1 (rev. 2003)).
Issues 1. Does the CUA’s burden of proof require a defendant to merely present evidence of compassionate use and then require the prosecution to prove beyond a reasonable doubt that the defendant has no defense of compassionate use?

2. In a defense under the CUA, should the trier of fact consider whether the amount of marijuana possessed or cultivated related to the defendant’s “own personal medical purposes” rather than “reasonably related to the patient’s current medical needs”?

3. Is a jury instruction under the CUA 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?

Holdings 1. 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.” 128 Cal. App. 4th at 818. “[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Id. at 807 (citations and internal quotations omitted) (alteration in original). However, “[a] state may allocate the burden of persuasion to a criminal defendant through the device of an affirmative defense.” Id. (citations and internal quotations omitted) (alteration in original). Because the CUA only provides an affirmative defense, “[t]here is no constitutional imperative that a State must disprove beyond a reasonable doubt every fact” constituting the defense. Id. (citations and internal quotations omitted). In People v. Mower, the Supreme Court of California “specifically concluded in the context of [the CUA] affirmative defense, the burden is on the defendant to raise a reasonable doubt as to the facts underlying this defense.” Id. at 820 (citing Mower, supra, 28 Cal.4th 457, 481 (2002)). The cases standing “for the proposition that the defendant’s only burden . . . is to produce evidence” involved murder charges “and [arose] out of the unique presumption of malice inherent in some killings.” Id. at 818, 820. In other words, because malice is an essential element of murder, it is improper to place both the burden of proof and burden of persuasion on a defendant. See id. at 819−20. Unlike the crime of murder, “[t]here is no similar presumption of an element of the crimes of the possession of or cultivation of marijuana inherent in the establishment of the prosecution’s case that a defendant possessed or cultivated marijuana.” Id. at 820.

2. In a defense under the CUA, the trier of fact should consider whether the amount of marijuana possessed or cultivated “reasonably related to the patient’s current medical needs”. 128 Cal. App. 4th at 824. Although People v. Mower, stated, “‘[w]hat could be questioned, however, was whether defendant possessed and cultivated the marijuana in question entirely for his own personal medical purposes’”, the Mower language did not overrule the language from People v. Trippet “that the jury should consider ‘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.’” Id. at 825 (citing Mower, supra, 28 Cal. 4th 457, 484−85; Trippet, supra, 56 Cal. App. 4th 1532, 1549 (1997)). “There is nothing inconsistent between these two phrases.” Id. Moreover, “[c]ases do not stand for propositions that were never considered by the court”, and “Mower did not address the question answered by Trippet as to what ‘personal medical purposes’ means under [the CUA].” Id. (citations and internal quotations omitted). “While the Mower opinion cites Trippet, the Mower opinion in no way denigrates the authority of Trippet on the subject . . . .” Id.

3. 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. 128 Cal. App. 4th at 822. The definition of “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’” comes from a partial citation to People ex rel. Lungren v. Peron. Id. at 823 (citing Peron, supra, 59 Cal. App. 4th 1383, 1399 (1997)). “The full quote from the opinion is as follows: ‘As we have noted, the statute defines a primary caregiver as one who has consistently assumed responsibility for the housing, health, or safety of [the patient]. . . . Assuming responsibility for housing, health, or safety does not preclude the caregiver from charging the patient for those services. A primary caregiver who consistently grows and supplies physician-approved or -prescribed medicinal marijuana for a [CUA] patient is serving a health need of the patient, and may seek reimbursement for such services.’” Id. at 823 (citing Peron, supra, 59 Cal. App. 4th at 1399, 1400). “This language applies to primary caregivers who seek reimbursement for their services.” Id. “It does not create a class of primary caregivers that does not already exist.” Id.

Discussion Discussion:
The primary significance of Frazier is the clarification it provides on People v. Mower, 28 Cal. 4th 457 (2002) regarding the CUA defense. Although Mower is clear as to the allocation and weight of the burden of proof, the decision does not directly address the burden of persuasion once the proof is offered and does not directly uphold “the reasonably related to the patient’s current medical needs” standard from People v. Trippet, 56 Cal. App. 4th 1532 (1997). Given the lack of absolute clarity, the defendant in Frazier rightly took the opportunity to argue for standards more beneficial to medical marijuana patients. Had the defendant in Frazier prevailed on his burden of persuasion argument, medical marijuana patients on trial merely would have had to present a valid physician’s approval to force the prosecution to present facts to rebut a presumptively valid CUA defense. Had the defendant in Frazier prevailed on his factual standard argument, medical marijuana patients would have been able to argue the amount of marijuana they possessed was based on their subjective assessment of their “own personal medical purposes” rather than an objective assessment of whether the amount possessed was “reasonably related to their current medical needs”. Unfortunately for future medical marijuana patients subjected to trial, the defendant’s arguments in Frazier did not carry the day.

The secondary significance of Frazier is its holding on the definition of “primary caregiver”. This holding is particularly important because Frazier is cited favorably in People v. Mentch, 45 Cal. 4th 274, 195 P.3d 1061 (2008). The Mentch decision is one of the primary vehicles used by prosecutors to argue that the Medical Marijuana Program Act (“MMPA”) does not authorize medical marijuana dispensaries or participation collective cultivation by paying another to cultivate. See People v. Baniani, 229 Cal. App. 4th 45, 56 (2014) (“The prosecution relied primarily on People v. Mentch, supra, 45 Cal.4th 274, 85 Cal.Rptr.3d 480, 195 P.3d 1061, and People ex rel. Trutanich v. Joseph (2012) 204 Cal.App.4th 1512, 140 Cal.Rptr.3d 9 for the proposition that defendant was not entitled to a defense under the MMPA.”); Chris Lindberg, Room For Abuse: A Critical Analysis of the Legal Justification for the Marijuana Storefront “Dispensary”, 40 Sw. L. Rev. 59, 117 (2010) (“Can you pay others to cultivate with you? Perhaps, so long as you are also engaging in the act of cultivation. It is not a duty that can be delegated, outside of the primary caregiver relationship, and still remain within the scope of the protected activity.” (footnotes omitted) (citing Mentch, supra, 195 P.3d at 1068)).

Finally, in a portion of the Frazier opinion not presented above, the court held the MMPA applies retroactively, but “[r]etroactive application of a defense is only required if its terms and the applicable facts permit, a defense to defendant.” 128 Cal. App. 4th at 826 (citations and internal quotations omitted). This portion of Frazieris not presented above, and, further here because taken outside the context of the Frazier’s CUA defense and “primary caregiver” holdings, the Frazier’s application of the MMPA has little precedential value. After all, the reason the MMPA did not apply to the defendant in Frazier was that he did not meet the CUA definitions of “qualified patient” or “primary caregiver”. See id. at 128 Cal. App. 4th at 827.

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