Appellate Court “Landmark Cases” Medical Marijuana

SB420 will reamin in effect only untill January 9th 2019 . At which time Senate Bill 420, which allows patients to provide marijuana/cannabis to other patients for no profit, will no longer be in effect. It will be replaced by AB266 and Prop64 which authorizes marijuana/cannabis to be provided to patients and non-patients for profit; subject to taxation and robust regulation. 

A PATIENT HAS A RIGHT TO A HEARING TO DISMISS THE CASE BEFORE TRIAL  

PEOPLE v. MOWER (2002) [28 Cal. App. 4th 457]: When a defendant is charged with a felony marijuana offense and proves that he/she is a qualified patient, the case should be dismissed pretrial. It is up to the prosecutor to prove that the amount of cannabis in question is beyond the extent allowed by Proposition 215.  

The California Supreme Court ruled unanimously that patients and caregivers are entitled to a pre-trial hearing in order to dismiss possession and/or cultivation offenses; thus, patients should not be burdened with having to proceed to trial. 

PATIENTS ARE ENTITLED TO HAVE THEIR MEDICAL MARIJUANA RETURNED TO THEM THE CITY OF  GARDEN GROVE v. THE SUPERIOR COURT, FELIX KHA [(2007) 157 Cal. App. 4th 355]: By providing a verified statement from their doctor, patients can affirm their right to have any seized medical marijuana returned to them. In addition, they are not required to provide information regarding the source of the marijuana. Federal laws pertaining to conspiracy, aiding and abetting are not applicable because the city is merely abiding to a  court order. Possession of medical marijuana is not a crime in the State of California. 

A DOCTOR’S ORAL RECOMMENDATION AND PATIENT’S TESTIMONY ALONE IS ENOUGH PEOPLE v.  JONES (2003) [112 Cal. App. 4th 341]: A patient’s testimony of oral approval from a doctor is sufficient enough to raise reasonable doubt. Also see People v. Windus (2008) [165 Cal. App. 4th 634 

THE JUDGE CAN DISMISS THE PATIENT’S CASE IN THE INTEREST OF JUSTICE PEOPLE v. KONOW (2004)  [32 Cal. App. 4th 995]: A patient/defendant may “informally suggest” that the court dismiss the complaint “in the interests of justice,” and the court has the power to do so. 

GROWERS MAY NOT PROVIDE TO DISPENSARIES (UNLESS THEY ARE A MEMBER OF A CO-OP OR  COLLECTIVE) PEOPLE v. GALAMBOS (2002) [104 Cal. App. 4th 1147]: The limited immunity created by medical marijuana laws does not establish the same immunity for growers who furnish marijuana to dispensaries.  However, refer to SB 420 on page 15 for more information regarding co-op and collective member patient protections that allow patients to cultivate marijuana and provide it to other patient members.  

ONCE A PATIENT HAS A DOCTOR’S APPROVAL OR RECOMMENDATION IT DOES NOT EXPIRE  AUTOMATICALLY AND THE DOCTOR CAN TESTIFY ABOUT THE CURRENT AMOUNTS NEEDED  PEOPLE v. WINDUS (2008) [165 Cal. App. 4th 634]: Windus had a recommendation that was expired when he  was arrested. His doctor testified at a trial that the 1.6 pounds Windus had when he was busted was reasonably related to his medical needs at that time. The court held that the CUA does not state that recommendations  expire or that they must be renewed once given. NOTE THAT THE DOCTOR’S LETTER DID NOT HAVE AN  EXPIRATION DATE IN THIS CASE, ALTHOUGH MOST LETTERS DO.  

TO QUALIFY AS A CAREGIVER, ONE MUST DO MORE THAN PROVIDE MARIJUANA AND OCCASIONALLY  PROVIDE OTHER SERVICES TO A PATIENT PEOPLE v. WINDUS (2008) [165 Cal. App. 4th 634]: As a caregiver,  one’s services must be consistent. In People v. Mentch [45 Cal. 4th 274, 283], the Supreme Court of California ruled that one must consistently assume responsibility before there is any marijuana provided to qualify as a  caregiver. In addition, one must also be able to provide care giving without providing marijuana.  

PATIENTS AND CAREGIVERS ARE ALLOWED TO TRANSPORT MARIJUANA FOR COLLECTIVES AND  CO-OPS PEOPLE v. COLVIN (2012) [203 Cal. App. 4th 1029]: Patients and caregivers who are members of collectives or co-ops may transport medical marijuana for that purpose. AG Guidelines permit members of collective or co-ops to perform other participant work besides cultivation for their collective or co-op.

TRANSPORTATION IS PERMITTED AS LONG AS THE AMOUNT IS REASONABLY RELATED TO THE  PATIENT’S NEEDS PEOPLE v. TRIPPET (1997) [56 Cal. App. 4th 1532]: “The quantity possessed by the patient  or the primary caregiver and the form and manner in which it is possessed must be reasonably related to the  patient’s current medical needs.” Prop. 215, a ruling that allows transportation, is protected.  

TRANSPORTATION FOR PERSONAL USE IS PROTECTED FOR MEDICAL PATIENTS PEOPLE v. WRIGHT  (2006) [40 Cal. App. 4th 81]: In this case, the defendant/patient denied that he had marijuana in the car, but the cop found numerous baggies totaling slightly over a pound and a scale in the vehicle. The defendant was charged with possession for sale and transportation; the jury was instructed on simple possession. In court, his doctor testified that he had approved self- regulating doses for his patient and that a pound every two or three months was consistent with his medical needs. The court held that the defendant was entitled to assert the defense under H&S Code §11362.77b and was not limited to any particular amount. In addition, patients are protected from charges of Vehicle Code §23222, possession of marijuana in a vehicle. 

Note from Bruce: Because the FAA (Federal Aviation Association) is under Federal law, traveling by airplane with medical marijuana is a violation of the Federal law, even if state law allows for the transportation of medical marijuana. However, I am not aware of any Federal charges brought involving small quantities  

THE REASONING BEHIND A DOCTOR’S RECOMMENDATION IS CONFIDENTIAL AND IS NOT TO BE  SECOND GUESSED BY THE JUDGE, JURY OR PROSECUTORS PEOPLE v. SPARK (2004) [121 Cal App. 259]:  “The compassionate use defense (H&S Code §11362.5) does not require a defendant to present evidence that  he or she was ‘seriously ill…’ the question of whether the medical use of marijuana is appropriate for a patient’s  illness is a determination to be made by a physician… not to be second-guessed by jurors who might not  deem the patient’s condition to be ‘sufficiently serious’”. 

A DOCTOR’S RECOMMENDATION MUST BE OBTAINED BEFORE THE BUST PEOPLE v. RIGO (1999) [69  Cal. App. 4th 409]: A doctor’s approval obtained post-arrest is not a defense.  

Note from Bruce: A post-arrest Doctor’s recommendation may be helpful in plea bargaining and defending  any charges of possession of marijuana for sale.  

A PATIENT/ DEFENDANT MAY POSSESS AND CULTIVATE ANY AMOUNT FOR THEIR PERSONAL  MEDICAL NEEDS PEOPLE v. KELLY (2010) [47 CAL. 4TH 1008]: The Supreme Court recently ruled that the  quantitative guidelines established in SB 420 were unconstitutional when applied to in-court prosecutions of  patients. This does not mean that there are no limitations on what a patient may grow or possess, but that these  limitations must be reasonably related to the patient’s current medical needs. 

ATTORNEY GENERAL GUIDELINES ARE RELEVANT IN EVALUATING THE LEGALITY OF DISPENSARIES/ COLLECTIVES PEOPLE v. HOCHANADEL (2009) [176 Cal. App 4th 997]: Dispensary/collective owners have  a 4th Amendment protection (standing) in regards to the location of the collective/dispensaries. The Court  held that the Attorney General Guidelines were instructive in the determination of the legality of a collective/  dispensary. HS Code §11362.5 instructs the Attorney General to formulate guidelines related to the application  of medical marijuana law.  

STOREFRONT DISPENSARIES THAT ARE PROPERLY ORGANIZED AS COOPERATIVES OR COLLECTIVES  MAY OPERATE LEGALLY, BUT MAY NOT QUALIFY AS PRIMARY CAREGIVERS PEOPLE v. HOCHANADEL  (2009) [176 Cal. App. 4th 997]: Any monetary reimbursements that members provide should only be the  amount necessary to cover overhead costs and operating expenses. The 2008 California Attorney General  Guidelines have considerable weight in evaluating the legitimacy of the organization and their activities. New  proposed Attorney General Guidelines have been published, but have not yet been approved. (The entire  AG Guidelines are on our website; refer to them for more information on the security and non-diversion of  marijuana grown for medical use)

A SEARCH WARRANT MUST INCLUDE THE DESCRIPTION OF THE MEDICAL MARIJUANA FACILITY  UNITED STATES v. $186,000.00 527 F. SUPP. 2D 1103: The police cannot omit any facts when they apply for a  search warrant that fails to describe the existence of a medical marijuana organization. In this case, the federal  appeals court held that a warrant was invalid since the dispensary was most likely legal under CA laws. 

THE LAW CONTEMPLATES THE FORMATION OF MARIJUANA/CANNABIS COOPERATIVES THAT  COULD RECEIVE REIMBURSEMENT FOR MARIJUANA/CANNABIS AND SERVICES PROVIDED  PEOPLE v. URZICEANU (2005) [132 Cal. App. 4th 747]: This case is a dramatic change for the prohibition of  use, distribution, and cultivation of marijuana for individuals, qualified patients and primary caregivers. The law  evaluates the formation and operation of medical marijuana cooperatives that receive reimbursements for  marijuana cultivation and other services provided in conjunction with the oversight of marijuana. Please see  page 22 for more detailed facts and information about this very important case.  

PATIENTS ARE ENTITLED TO CULTIVATE (NON-PROFIT) FOR THEMSELVES AND THEIR COLLECTIVE NO  MATTER HOW LARGE THE COLLECTIVE MAY BE. PEOPLE v. JOVIAN JACKSON (2012) [210 Cal. App. 4th  525]: Even if a collective has 1600 members, the number of members does not delegitimize the collective.  Jackson is entitled to offer evidence under the Medical Marijuana Program Act (H&S Code §11362.7). In this case,  Jovian Jackson had testified that he and five others were cultivating and providing marijuana to themselves  and approximately 1,600 other members of the collective. Jackson offered no testimony regarding the method  in which the collective was governed, but did testify that the collective did not generate profit for either himself  nor the other 4 or 5 participants. He had testified that he and fellow members were paid only for the expenses  acquired from cultivating marijuana and operating the dispensary. In addition, there were no membership  meetings or any attempts to contact members regarding the operations. Although there were high volume  purchases made by members, this did not mean that the defendants made any profit. The failure to maintain  financial records is considered by the jury or judge in evaluating whether profit was being accrued. 

THE DEFENDANT MUST PROVIDE EVIDENCE TO SUPPORT THE CLAIM THAT HE/SHE IS NOT GAINING  ANY PROFIT FROM CULTIVATING MARIJUANA FOR A COLLECTIVE PEOPLE v. LONDON (2014) [228 Cal.  App. 4th 544]: In this case, the defendant was deemed guilty for cultivating marijuana with the intent to  garner profit from his local medical marijuana collective. The defendant argued that the “profit” made was  merely reimbursement for his labor and any other costs and expenses incurred in growing the plants. However,  the court ruled that sale or possession for sale of marijuana was illegal “even as a nonprofit organization” so  any arguments about compensation or salary reimbursements were disqualified. It was found that the jury’s  instructions regarding the cultivation marijuana were flawed, as they were not based off the MMPA instructions,  which allow medical marijuana patient members of nonprofit collectives to reimburse each other for cultivating  marijuana. However, the court found no evidentiary basis proving that London was not obtaining an illegal  profit for cultivating and providing marijuana plants to a collective or that the collective was operating lawfully. 

A DISPENSARY’S PATIENTS CAN TRANSPORT MARIJUANA; MEMBER PARTICIPATION REQUIRES  NOTHING MORE THAN BEING CUSTOMERS PEOPLE v. COLVIN (2012) [203 Cal. App. 4th 1029]: The court  held that per H&S Code §11362.775, transportation of over a pound of marijuana between dispensaries is  legal if done by a manager. In addition, members of collectives need to do nothing more than shop at their  dispensaries and are not required to participate otherwise. Collectives and cooperatives may cultivate and  transport marijuana in aggregate amounts tied to its membership numbers. The possession of extracted or  concentrated cannabis is also protected. In this case, Marijuana was grown in Humboldt and Los Angeles;  the growers dropped off the marijuana in dispensaries and collectives for other members to buy it and the  members paid for the marijuana.  

A PATIENT IN NEED OF RELIEF THROUGH MEDICAL MARIJUANA CAN PARTICIPATE IN A COLLECTIVE BY  MERELY CONTRIBUTING MONEY; HE/SHE DOES NOT HAVE TO WAIT TO ACQUIRE MEDICAL MARIJUANA  PEOPLE v. BANIANI (2014) [229 Cal. App. 4th 45]: Mr. Baniani was the founder of a medical marijuana cooperative  and was charged for the sale and possession for sale of marijuana. The court found that the defendant was entitled  to a defense under the MMPA since the collective was set up as a non-profit cooperative, the defendant owned  a state seller’s license, no profit was made from selling the marijuana to any patients, and because growers were  reimbursed for cultivation costs. The prosecutor argued that it was unlawful for members of the cooperative who  were unable to physically take part of tending to the plants to participate through monetary contributions. The  court disagreed with this statement by saying that it would be cruel to force those in need of relief to contribute  physical strength to cultivate marijuana only to wait months to finally utilize it.

CONCENTRATED CANNABIS IS CONSIDERED TO BE MARIJUANA AND IS PROTECTED UNDER THE CUA  PEOPLE v. MULCREVY (2014) [233 Cal. App. 4th 127]: Mulcrevy’s probation was extended for two more years  because the court found that he violated his terms of probation by possessing concentrated cannabis. When the  appeal was reversed, the court ruled that Mulcrevy’s due process right was violated; concentrated cannabis is in  fact covered by the CUA so there was not enough evidence to conclude that the defendant violated his probation.  Note from Bruce: Prop 64 allows adults to legally posses up to 8grams of Hash or concentrated cannabis. 

CULTIVATING MEDICAL MARIJUANA FOR A COOPERATIVE OR COLLECTIVE IS LEGAL IF THE INDIVIDUAL  IS A PATIENT AND A MEMBER PEOPLE v. ANDERSON (2014) [Cal. App. 5th]: Anderson was arrested and charged  for the cultivation of marijuana, possession of marijuana for sale and possession of concentrated cannabis. The  defendant was a medical marijuana patient who grew for his own personal use and cosigned the excess to the  medical marijuana cooperative that he was a member of. The defendant argued that the jury was not given proper  instructions regarding a medical marijuana patient’s defense because cultivation by patients for cooperative and  collectives is legal; in addition, he argued that any evidence of marijuana should be excluded because officers  destroyed almost all of the seized plants. The court agreed with the defendant’s first claim; proper instruction would  have reached a more favorable verdict to the defendant.  

SENATE BILL 420 DOES NOT HAVE SIZE OR FORMALITY REQUIREMENTS REGARDING COLLECTIVES  AND COOPERATIVES PEOPLE v. ORLOSKY (2015) [Cal. Rptr. 3d]: Officers executed a search warrant and found numerous plants on the defendant’s property; Orlosky and his partner were charged with possession of marijuana for sale and cultivation. The defendant asserted a medical marijuana defense under the CUA, stating he was growing the marijuana for his and his partner’s medical needs. There was no formality within the partnership,  thus the prosecutor argued that the absence of business or formality results in the absence of jury instruction on the collective cultivation defense. The appellate court disagreed, stating that the CUA does not have a degree of formality when discussing qualified patients who work collectively and cooperatively together to grow; thus the defendant’s requested jury instruction should have been granted.  

THE COURT HAS THE DISCRETION TO EVEN PROHIBIT USAGE OF MEDICAL MARIJUANA WHEN  IMPOSING PROBATION PEOPLE v. LEAL (2012) [210 Cal. App. 4th 829]: The court granted Leal three years formal probation and prohibited him from any form of marijuana use. The defendant was later found guilty of possession for sale of marijuana. Although the defendant was a medical marijuana patient, the court found that “he is much more likely to engage in future criminal activity selling marijuana again if he is in possession of it for medical use”  and upheld the previous probationary restrictions.  

PARENTAL USE OF MEDICAL MARIJUANA ALONE DOES NOT ESTABLISH THAT A CHILD IS IN RISK OF  PHYSICAL HARM OR ILLNESS IN RE DRAKE M. (2012) [Cal. App. 2nd]: When Drake was nine months old,  he was referred to the Department of Children and Family Services because his mother had a history of drug abuse and DCFS was already involved due to a case with another child she previously had. When investigating the living situation, the social worker found that the father and mother used medical marijuana. DCFS sought for the removal of Drake from his parent’s custody. The court ordered the father to avoid taking care of his son when under the influence, to take part in counseling and parenting courses and to submit to random drug testing along with the mother. When the case was appealed, the court found insufficient evidence to support that Drake had suffered in any way because of his father’s marijuana use. The court made the distinction between “drug use” and “drug abuse,” stating that the two terms do not have the same meaning.

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