SERIES 2300 CONTROLLED SUBSTANCES
F 2360 NOTES
TABLE OF CONTENTS
F 2360 Note 1 Transporting Or Giving Away Marijuana: Not More Than 285 Grams— Misdemeanor—CALCRIM Cross-References And Research Notes
F 2360 Note 2 Medical Marijuana Defense: Elements Of The Defense (HS 11362.5)
F 2360 Note 3 Medical Marijuana Defense: Applicability To Transportation (HS 11362.5)
F 2360 Note 4 Medical Marijuana Defense As Mitigation At Sentencing (HS 11362.5)
F 2360 Note 5 Medical Marijuana Defense: Sale/Possession For Sale Not Exempt From Prosecution Under HS 11362.5
F 2360 Note 6 Medical Marijuana Defense: Only Patient Or “Primary Caregiver” Exempt From Prosecution Under HS 11362.5
F 2360 Note 7 Medical Marijuana Defense: Commercial Sales Not Exempt Under HS 11362.5
F 2360 Note 8 Medical Marijuana Defense: Amount Of Marijuana Permissible Under The Defense
F 2360 Note 9 Distribution Of Marijuana: Medical Necessity As Defense
F 2360 Note 10 Medical Marijuana Defense: Rejection Of Defense Under Federal Statute Does Not Invalidate Proposition 215
F 2360 Note 11 Medical Necessity Defense: Physician “Approval” Or “Recommendation”
F 2360 Note 12 Medical Necessity Defense (HS 11362.5): At EC 402 Hearing Defendant Need Only Establish That The Jurors Could Have A Reasonable Doubt
F 2360 Note 13 Medical Marijuana Defense: Doctor’s Statement That It “Might Help” Sufficient
F 2360 Note 14 Compassionate Marijuana Use: Charge Of Possession For Sale Does Not Preclude Defense Where Defendant Is Charged With Lesser Included Offense Of Simple Possession
F 2360 Note 15 Compassionate Marijuana Use: “Primary Caregiver” Is Not A Technical Term
F 2360 Note 16 Whether Jury Must Determine If Amount Of Marijuana Is Reasonably Related To Patients’s Current Medical Needs
F 2360 Note 17 Medical Marijuana Defense: Requirement That Alternative Legal Drug Is Not Available (HS 11362.5)
Return to Series 2300 Table of Contents.
F 2360 Note 1Transporting Or Giving Away Marijuana: Not More Than 285 Grams— Misdemeanor—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
See FORECITE F 2300 Notes.
CALCRIM 2300 [Sale, Transportation, Etc., of Controlled Substance]
CALCRIM 2361 [Transporting or Giving Away Marijuana: More Than 28.5 Grams]
CALCRIM 2362 [Offering to Transport or Give Away Marijuana: Not More Than 28.5 Grams—Misdemeanor]
CALCRIM 2363 [Offering to Transport or Give Away Marijuana: More Than 28.5 Grams]
Research Notes:
See CLARAWEB Forum, Controlled Substances—Series 2300.
F 2360 Note 2Medical Marijuana Defense: Elements Of The Defense (HS 11362.5)
People v. Trippet (1997) 56 CA4th 1532 recognized that the defense of necessity could apply to the medical use of marijuana provided the requisite elements of the necessity defense were established. These elements are: (1) the possession, cultivation or transportation was to prevent a significant evil; (2) there was no adequate alternative; (3) the harm resulting from possessing, cultivating or transporting marijuana was not greater than the harm avoided; (4) the defendant believed his or her actions were necessary to prevent greater harm; (5) the defendant’s belief was objectively reasonable; and (6) the defendant did not substantially contribute to the creation of the emergency. (See also People v. Rigo (1999) 69 CA4th 409 [medical marijuana defense based on compassionate use (H&S 11362.5) not available where defendant had no prior consultation with doctor regarding the medical use of marijuana]; FORECITE F 12.24.1 n3 and F 12.24.1 n4 re: general issues regarding Prop. 215.)
CALJIC NOTE: See FORECITE F 12.24.1 n1.
F 2360 Note 3Medical Marijuana Defense: Applicability To Transportation (HS 11362.5)
HS 11362.5(d) (“Compassionate Use Act” Prop. 215, added by initiative 11/5/96) provides that the criminal penalties of HS 11357 do not apply to a patient who possesses marijuana for the personal medical purposes of the patient upon written or oral recommendation or approval of a physician. HS 11362.5(d) does not specify an exception to HS 11360 regarding sale and transportation of marijuana. However, People v. Trippet (1997) 56 CA4th 1532 held that transportation may also be non-criminal under the Medical Marijuana Initiative if the quantity transported, the method, timing and distance of the transportation are reasonably related to the patient’s current medical needs. (See also People v. Young (2001) 92 CA4th 229 [Compassionate Use Act (HS 11362.5) not a defense to transporting marijuana; it may be a defense for incidental transportation, such as moving the drug from the garden to the bedroom of the patient]; see also People v. Jones (2003) 112 CA4th 341 [even if the doctor denied making the statement, the defendant is still entitled to present this to the jury, since the issue is not whether the doctor is more credible than the defendant but whether there is evidence which, if believed, was sufficient to leave the jury with a reasonable doubt about whether the doctor had approved the use of marijuana].)
See also FORECITE F 12.24.1 n1 and F 12.24.1 n2.
CALJIC NOTE: See FORECITE F 12.24.1 n3.
F 2360 Note 4Medical Marijuana Defense As Mitigation At Sentencing (HS 11362.5)
The court of appeal has recognized that medical considerations may be a mitigating factor at sentencing. (People v. Trippet (1997) 56 CA4th 1532, 1551.) (See FORECITE F 12.24.1 n1 and F 12.24.1 n2 regarding medical necessity as a defense to marijuana-related charges.)
CALJIC NOTE: See FORECITE F 12.24.1 n4.
F 2360 Note 5 Medical Marijuana Defense: Sale/Possession For Sale Not Exempt From Prosecution Under HS 11362.5
People ex rel Lungren v. Peron (1997) 59 CA4th 1383 held that the sale and possession for sale of marijuana continue to be proscribed by sections HS 11360(a) and HS 11359 following enactment of section HS 11362.5. The lack of profit to the seller or possessor does not exempt such activities from prosecution under those sections or from the provisions of section 11570.
CALJIC NOTE: See FORECITE F 12.24.1 n5.
F 2360 Note 6Medical Marijuana Defense: Only Patient Or “Primary Caregiver” Exempt From Prosecution Under HS 11362.5
People ex rel Lungren v. Peron (1997) 59 CA4th 1383 held that HS 11362.5(d) only exempts a patient or the patient’s “primary caregiver” from prosecution under section HS 11357 (marijuana possession) and section HS 11358 (marijuana cultivation) when either of them possess or cultivate marijuana only for the patient’s personal medical purposes upon the written or oral recommendation or approval of a physician.
CALJIC NOTE: See FORECITE F 12.24.1 n6.
F 2360 Note 7Medical Marijuana Defense: Commercial Sales Not Exempt Under HS 11362.5
People ex rel Lungren v. Peron (1997) 59 CA4th 1383 held that commercial enterprises selling marijuana to any qualified public purchaser, do not qualify as “primary caregivers” of each such purchaser under section HS 11362.5(e) by simply obtaining from the purchaser a designation as such prior to and as a condition of a marijuana sale to that person. One maintaining a source of marijuana supply, from which all members of the public qualified as permitted medicinal users may or may not discretionarily elect to make purchases, does not thereby become the party “who has consistently assumed responsibility for the housing, health, or safety” of that purchaser as section HS 11362.5(e) requires. Such commercial enterprises are, consequently, not immunized against the enforcement of section HS 11570 against them because they allegedly store, possess, and sell marijuana in the capacity of consistent primary caretakers of the health and safety of their numerous purchasers.
The general availability of injunctive relief under section HS 11570 against buildings and drug houses used to sell controlled substances is not affected by section HS 11362.5, and its application was not precluded on the record in Peron.
CALJIC NOTE: SeeFORECITE F 12.24.1 n7.
F 2360 Note 8Medical Marijuana Defense: Amount Of Marijuana Permissible Under The Defense
The statute itself provides no specific guidance as to how much marijuana a person may lawfully possess or cultivate under HS 11362.5. The language of People v. Trippett (1997) 56 CA4th 1532, 1551, which concerned application of the defense to a charge of transportation of marijuana, stated that the test is whether the amount was “reasonably related to the patient’s current medical needs.” Thus, it will normally be a matter of proof as to the patient’s medical needs. This proof could come from the patient’s testimony or from an expert who is familiar with usage patterns. (See Defending Marijuana Cases Involving Medical Marijuana After Proposition 215, by David Nelson, CACJ/FORUM, Vol. 26, No. 2, 1999, p. 44. [See Article Bank # A-72for this article.] Additional support may come from the guidelines established by the City of Oakland.
“The Oakland working group determined that it would base its estimates of need on current testing being done by the Food & Drug Administration on the medical use of marijuana. In their experiments, the patients are given a monthly ration of 300 cigarettes each weighing approximately .9 grams. This is approximately one-half pound per month. Oakland determined that a reasonable amount of processed marijuana for a patient to possess would be a three-month’s supply at half a pound per month for a total of one and a half pounds. A reasonable amount of processed marijuana for a care giver to possess would be the number of substantiated patients times one and one-half pounds.” (See Defending Marijuana Cases Involving Medical Marijuana After Proposition 215, p. 44.)
The Oakland group also attempted to determine the reasonable number of plants to be possessed. “Outdoor plants are harvested once a year while indoor plants can be harvested quarterly. Outdoor plants are typically larger and therefore generate a greater yield. In determining the reasonable number of outdoor plants, the group considered the fact that these plants only produce once a year and the reasonable harvest should be capable of yielding the annual supply of four three-month’s supplies, six pounds. It was estimated that thirty adult plants should yield this harvest. An adult plant is a female that has begun flowering. In order to [e]nsure that the patient is capable of producing thirty flowering plants s/he should be allowed to plant twice that number, sixty plants. Patients can maintain all sixty plants until they have thirty flowering plants. Once patients have thirty flowering plants they must destroy all the rest.
For indoor marijuana plants, it was established that it will take forty-eight plants to yield one and one-half pounds in a three-month period. As above, the patient should be allowed to plant twice the number, ninety-six plants, and maintain them until forty-eight are flowering. Once they have forty-eight flowering plants they must destroy the rest of the flowering plants. However, they can continue, for the next cycle, to possess up to ninety-six non-flowering plants for a cumulative total of one hundred and forty-four plants. The reasonable number of plants for a care giver to possess would be the multiple of the number of substantiated patients being cared for times the type of plant, indoor or outdoor.
These numbers are based on the initial assumption that a medical patient may be using ten cigarettes per day as provided by the Food & Drug Administration in its protocol.” (Ibid.)
CALJIC NOTE: See FORECITE F 12.24.1 n8.
F 2360 Note 9Distribution Of Marijuana: Medical Necessity As Defense
California: At the general election held on November 5, 1996, the electors approved an initiative statute designated on the ballot as Proposition 215 and entitled “Medical Use of Marijuana.” In pertinent part, the measure added section 11362.5, the Compassionate Use Act of 1996. HS 11362.5 provides a defense at trial which merely requires the defendant to leave the jury with a reasonable doubt as to the underlying facts. (People v. Mower (2002) 28 C4th 457, 481; see also People v. Galambos (2002) 104 CA4th 1147 [defendant was not entitled to the limited immunity defense under Prop. 215 (HS 11362.5(d)) to charge of cultivating marijuana for cannabis buyers club because he was not the primary caregiver of the buyers club patients].)
Federal: U.S. v. Oakland Cannabis Buyers Coop. (9th Cir. 1999) 190 F3d 1109 held that medical necessity may be a legally cognizable defense for distribution of marijuana to people who are ill under the Federal Controlled Substances Act (21 USC 801, et seq.). (See also U.S. v. Aguilar (9th Cir. 1989) 883 F2d 662, 693 [outlining defense of necessity].) However, U.S. v. Oakland Cannibis Buyers Coop. was reversed by the U.S. Supreme Court which held that no implied medical necessity exception exists in prohibitions on manufacture and distribution of marijuana established by the Controlled Substances Act. (U.S. v. Oakland Cannabis Buyers Coop. (2001) 532 US 483 [121 SCt 1711; 149 LEd2d 722]; but see Conant v. McCaffrey (9/7/2000, N.D. CA No. C 97-00139) 2000 WL 1281174, 2000 U.S. Dist. LEXIS 13024 [First Amendment precludes government from revoking a physician’s license to dispense controlled substances merely because a physician “recommends” marijuana as a therapy to a patient].)
CALJIC NOTE: See FORECITE F 12.24.1 n9.
F 2360 Note 10 Medical Marijuana Defense: Rejection Of Defense Under Federal Statute Does Not Invalidate Proposition 215
In U.S. v. Oakland Cannabis Buyer’s Cooperative (2001) 532 US 483 [149 LEd2d 722; 121 SCt 1711] the U.S. Supreme Court held that there is no medical necessity exception to the federal statutory prohibitions on manufacturing and distributing marijuana; however, the ruling applied to the federal marijuana statute, and the Court did not say that the medical marijuana defense is invalid as a matter of state law. California has its own marijuana statutes and medical defense (HS 11362.5).
CALJIC NOTE: See FORECITE F 12.24.1 n10.
F 2360 Note 11 Medical Necessity Defense: Physician “Approval” Or “Recommendation”
People v. Trippet (1997) 56 CA4th 1532, 1548, concluded the words “recommendation” and “approval” “mean something slightly different, and … ‘approval’ connotes a less formal act than a ‘recommendation.’” People v. Jones (2003) 112 CA4th 341 agreed that the two terms have different meanings, but that the difference is not simply a matter of the degree of formality. “To ‘recommend’ something is ‘to present [it] as worthy of acceptance or trial.’ (Merriam-Webster’s Collegiate Dict. (10th ed. 2001) p. 974.) To ‘approve’ something is to ‘express a favorable opinion of’ it.” (Id. at p. 57; Jones, 112 CA4th at 347.)
CALJIC NOTE: See FORECITE F 12.24.1 n11.
F 2360 Note 12 Medical Necessity Defense (HS 11362.5): At EC 402 Hearing Defendant Need Only Establish That The Jurors Could Have A Reasonable Doubt
If a defendant asserts a Compassionate Use Act defense (HS 11362.5) the prosecution may request that the court hold an EC 402 hearing before trial to determine whether defendant should be allowed to present evidence he cultivated the marijuana for his own medical use as permitted under the Act.
In People v. Mower (2002) 28 C4th 457, the Court held that, at trial, a defendant asserting a Compassionate Use Act defense need not persuade the jury by a preponderance of the evidence that he had a physician’s approval to use marijuana, instead, he need only leave the jury with a reasonable doubt as to whether he had such an approval. At a section 402 hearing, “[t]he proponent of the proffered evidence has the burden of producing evidence as to the existence of the preliminary fact, and the proffered evidence is inadmissible unless the court finds that there is evidence sufficient to sustain a finding of the existence of the preliminary fact, when: [¶] (1) The relevance of the proffered evidence depends on the existence of the preliminary fact, …” (EC 403(a).)
In People v. Jones (2003) 112 CA4th 341 the court found that there is some authority for the proposition that “the correct standard of proof for a preliminary fact under EC 403 is evidence sufficient to support a finding by a preponderance of the evidence.” (Citing People v. Herrera (2000) 83 CA4th 46, 61.) “That cannot be true, however, when (as here) a burden of proof less onerous than preponderance of the evidence applies at trial. If, to prevail at trial, the defendant is required only to raise a reasonable doubt as to whether he had a physician’s approval to use marijuana, then no greater burden can be imposed on the defendant at a pretrial section 402 hearing called to challenge his Compassionate Use Act defense. If the defendant produces evidence at the section 402 hearing sufficient to raise a reasonable doubt as to whether he had a physician’s approval to use marijuana, then the gatekeeping function of a section 402 hearing is satisfied and the defense should go to the jury to decide. Only if the defendant fails to produce sufficient evidence to raise a reasonable doubt about the existence of an approval is the trial court justified in keeping the matter from the jury.” (Jones, 112 CA4th 350; see also People v. Lucas (1995) 12 C4th 415, 467 [“[t]he judge’s function on questions of this sort is merely to determine whether there is evidence sufficient to permit a jury to decide the question”].)
See also FORECITE F 12.24.1 n11 [Medical Necessity Defense: Physician “Approval” Or “Recommendation”].
CALJIC NOTE: See FORECITE F 12.24.1 n12.
F 2360 Note 13 Medical Marijuana Defense: Doctor’s Statement That It “Might Help” Sufficient
In People v. Jones (2003) 112 CA4th 341, the trial court erred in refusing to allow the defendant to testify that his doctor told him marijuana “might help,” and to “go ahead” and try it. Under People v. Mower (2002) 28 C4th 457, the defendant need only leave the jury with a reasonable doubt as to whether he or she qualifies for the Compassionate Act Defense (HS 11362.5; Prop. 215). The doctor’s statement was enough to do so.
CALJIC NOTE: See FORECITE F 12.24.1 n13.
F 2360 Note 14 Compassionate Marijuana Use: Charge Of Possession For Sale Does Not Preclude Defense Where Defendant Is Charged With Lesser Included Offense Of Simple Possession
See FORECITE F 12.24.1 n14; see also FORECITE F 2302.9 Inst 1.
F 2360 Note 15 Compassionate Marijuana Use: “Primary Caregiver” Is Not A Technical Term
In People v. Frazier (2005) 128 CA4th 807, 822-23 the trial court instructed the jurors that a “primary caregiver is an individual designated by the person exempted who has consistently assumed the responsibility for the housing, health or safety of that person.” The court held that the “language used in the court’s instructions parallels the statute and is comprised of words commonly understood by those familiar with the English language. Those words are not used in a technical sense peculiar to the law.” (Id. at 823.)
CALJIC NOTE: See FORECITE F 12.24.1 n15.
F 2360 Note 16 Whether Jury Must Determine If Amount Of Marijuana Is Reasonably Related To Patients’s Current Medical Needs
(See People v. Frazier (2005) 128 CA4th 807, 824 [concluding this is not a jury question and that Mower did not overrule Trippet].)
CALJIC NOTE: See FORECITE F 12.24.1 n16.
F 2360 Note 17Medical Marijuana Defense: Requirement That Alternative Legal Drug Is Not Available (HS 11362.5)
In People v. Trippet (1997) 56 CA4th 1532 the defense of necessity was not available because the defendant did not establish that the taking of another drug, which was legal, would not have been an alternative for her medical problem. (See also FORECITE F 12.24.1 n3 and F 12.24.1 n4 re: general issues regarding Prop. 215.)
CALJIC NOTE: See FORECITE F 12.24.1 n2.
