CC 2361 sets forth criteria that must be satisfied for the defense to apply, including whether “the method, timing and distance of the transportation were reasonably related to the patient’s current medical needs. These criteria are derived from a test developed by the Court of Appeal in People v. Trippet (1997) 56 Cal. App. 4th 1532, 1550-1551, to determine whether the defense applies in transportation cases. The California Supreme Court has held that the test constitutes “a useful analytic tool.” (People v. Wright (2006) 40 Cal. 4th 81, 92.) People v. Wayman (2010)189 Cal. App. 4th 215, subsequently refused to expand the defense to cover transportation of marijuana in excess of a defendant’s current medical needs, holding that it was unlawful for the defendant to store and drive around in his car with amounts of marijuana he planned to use on future occasions.
The Medical Marijuana Program, H&S § 11362.7, provides a defense for patients who participate collectively or cooperatively cultivating marijuana. The defense “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.” (People v. Jackson (2012) 210 Cal. App. 4th 525, 529.) The Court of Appeal has interpreted the Medical Marijuana Program so that “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.” (Ibid., see also People v. Colvin (2012) 203 Cal. App. 4th 1029, 1037; People v. Urziceanu (2005) 132 Cal. App. 4th 747, 785.) Hence, even if the collective has a large membership where very few members participate in the actual cultivation process, this does not prevent a member from asserting a defense based on the Medical Marijuana Program. (People v. Jackson, supra, 210 Cal. App. 4th at 529-530.) Nonetheless, in determining whether a “defense has been established, a trier of fact must consider whether the organization operates as a for 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.” (Ibid.)
In cases involving collectives or cooperatives, “in addition to an instruction that an enterprise must be nonprofit, the People are 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.” (Ibid.)