California Landmark Cases on Medical Marijuana Defense

The CUA was enacted by California voters in 1996 and is designed to "ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes." ( 11362.5, subd. (b)(1)(A).) It provides that the criminal statutes proscribing marijuana possession and cultivation do not apply to patients who possess or cultivate marijuana for their personal medical purposes upon a doctor's written or oral recommendation or approval: "Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient's primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician." ( 11362.5, subd. (d); see People v. Kelly (2010) 47 Cal.4th 1008, 1012 (Kelly).) The "medical purposes" requirement has been judicially construed to mean "'the quantity possessed by the patient . . . , and the form and manner in which it is possessed, should be reasonably related to the patient's current medical needs." (Kelly, at p. 1013.) The CUA encourages the federal and state governments "to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana." ( 11362.5, subd. (b)(1)(C).) In response to this directive, the California Legislature enacted the MMPA in 2003, which is designed to "'"enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects."'" (People v. Orlosky (2015) 233 Cal.App.4th 257, 267 (Orlosky).) Under the MMPA, "qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570." ( 11362.775.) "Although section 11362.775 clearly provides for collective cultivation, it does not specify what the Legislature meant by an association of persons who engage in collective or cooperative cultivation for medical purposes. For example, there is no mention of formality requirements, permissible numbers of persons, acceptable financial arrangements, or distribution limitations." (Orlosky, supra, 233 Cal.App.4th at pp. 267-268.) Courts have considered the parameters of collective endeavors under the MMPA, concluding that both large scale and smaller operations may qualify so long as the enterprise operates on a nonprofit basis and in a manner consistent with medical purposes. (See Orlosky, at pp. 268, 271-272; People v. Jackson (2012) 210 Cal.App.4th 525, 538-539 (Jackson); People v. Colvin (2012) 203 Cal.App.4th 1029, 1036-1037 (Colvin).) The size of an operation and its relative formality (or lack thereof) are factors the courts have considered when determining whether an operation falls within the MMPA, though these factors are not dispositive. (Orlosky, at p. 268; Jackson, at pp. 529-530.) The California Attorney General has also promulgated Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use (August 2008) (A.G. Guidelines) that look to such factors as limiting the purchase, sale and distribution transactions to persons who are qualified patients and members of the cooperative, limiting monetary reimbursements from members to amounts necessary for operating and overhead costs, and documenting each member's contribution to the enterprise. (A.G. Guidelines, as of June 9, 2015; Orlosky, supra, 233 Cal.App.4th at p. 268, fn. 6.) These guidelines, while not binding, have been given considerable weight by the courts when determining whether an operation qualifies as a collective under the MMPA. (Colvin, supra, 203 Cal.App.4th at p. 1040, fn. 11; Qualified Patients Assn. v. City of Anaheim (2010) 187 Cal.App.4th 734, 748; People v. Hochanadel (2009) 176 Cal.App.4th 997, 1011.) A defendant may defend against a charge of cultivating or possessing marijuana on the ground that those laws do not apply because he or she is a qualified patient under the CUA and the MMPA. (People v. Mower (2002) 28 Cal.4th 457, 477-481 (Mower).) The burden of proof as to the facts underlying these defenses is allocated to the defendant, but proof by a preponderance of the evidence is not required and this burden is met when the defendant simply raises a reasonable doubt as to those facts. (Id. at pp. 478-481; People v. Solis (2013) 217 Cal.App.4th 51, 58 (Solis); Jackson, supra, 210 Cal.App.4th at p. 533; People v. Frazier (2005) 128 Cal.App.4th 807, 816-821 (Frazier).)