Medical Marijuana Law in California
In 1996, California voters approved a proposition enacting the Compassionate Use Act of 1996 (CUA) which 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).)
The CUA 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. ( 11362.5, subd. (d); People v. Kelly (2010) 47 Cal.4th 1008, 1012 103 Cal. Rptr. 3d 733, 222 P.3d 186 (Kelly).)
Section 11362.5, subdivision (d) states: "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."
The CUA does not specify an amount of marijuana that a patient may possess or cultivate, but simply imposes the requirement that the marijuana must be for the patient's "personal medical purposes." ( 11362.5, subd. (d), italics added; see Kelly, supra, 47 Cal.4th at p. 1013.) This 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, supra, at p. 1013.)
(2) The CUA includes a provision stating that one of its purposes is to "encourage 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), italics added.) Responding to this directive, in 2003 the California Legislature enacted the Medical Marijuana Program (MMP) which added several new code sections to the Health and Safety Code. (Kelly, supra, 47 Cal.4th at p. 1014; People v. Urziceanu (2005) 132 Cal.App.4th 747, 782-783 33 Cal. Rptr. 3d 859.) One of the purposes of the MMP is to "'enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects.'" (People v. Colvin (2012) 203 Cal.App.4th 1029, 1035 137 Cal. Rptr. 3d 856.)
To effectuate this goal, the MMP includes a provision concerning collective cultivation, stating that "qualified patients ... who associate ... in order collectively or cooperatively to cultivate marijuana for medical purposes" are exempt from criminal culpability. ( 11362.775, italics added; see People v. Urziceanu, supra, 132 Cal.App.4th at p. 785.)5 A qualified patient who may participate in this collective cultivation is defined as "a person who is entitled to the protections of Section 11362.5 ... ."; i.e., patients who cultivate for medical purposes upon the written or oral recommendation or approval of a physician. ( 11362.7, subd. (f).)
Section 11362.775 states: "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."
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. Not surprisingly, therefore, over the past decade there has been considerable litigation as to how the collective cultivation provision should be applied. Numerous courts have focused on collective endeavors involving the distribution of marijuana to large numbers of persons who are not involved in the cultivation activity.
In that context, the courts have concluded the provision properly encompasses relatively large scale enterprises that distribute marijuana to qualified patients, so long as the enterprise operates on a nonprofit basis and in a manner consistent with distribution for medical purposes. (People v. Jackson (2012) 210 Cal.App.4th 525, 529-530, 538-539 148 Cal. Rptr. 3d 375; People v. Colvin, supra, 203 Cal.App.4th at pp. 1036-1037; see People v. Urziceanu, supra, 132 Cal.App.4th at p. 785.)
Further, the courts have found the collective cultivation provision does not require that all members actively participate in the cultivation process but allows for members to support the cooperative endeavor through, for example, financial contributions to pay for the cost of the cultivation. (People v. Jackson, supra, at pp. 529-530, 536-537.)
In addition to judicial authority defining legal distribution endeavors, the Attorney General has issued detailed guidelines that delineate a variety of criteria to assist with identifying legitimate medical marijuana distribution operations, including for example, the dispensary's compliance with state and local licensing and permit laws and the presence of other indicia of a formally organized business. (Attorney General's Guidelines for the Security and Non-diversion of Marijuana Grown for Medical Use (Aug. 2008) pp. 8-11 (Guidelines).)
This business formality factor has been used by the courts when examining whether a particular marijuana dispensary operation falls within the purview of criminally exempt activity under the collective cultivation provision. (See, e.g., People v. Jackson, supra, 210 Cal.App.4th at p. 539; People v. Solis (2013) 217 Cal.App.4th 51, 53, 57-59 158 Cal. Rptr. 3d 34; People v. Colvin, supra, 203 Cal.App.4th at p. 1040; People v. London (2014) 228 Cal.App.4th 544, 566 175 Cal. Rptr. 3d 392.)
To date, the legal standards governing the collective cultivation provision, including the references to the business formality criteria, have been developed primarily in cases involving expansive marijuana distribution operations to persons outside the cultivation activities.
There has been little or no discussion of the collective cultivation defense in the context of informal cultivation efforts among a limited number of qualified patients who simply grow and use their own marijuana with no involvement or distribution to other qualified patients.
Concerning the amount of evidence needed to require instruction on the collective cultivation defense, The Court emphasized in Jackson that the defendant only has a "minimal burden" in this regard. (People v. Jackson, supra, 210 Cal.App.4th at pp. 533, 538-539.)
That is, the defendant need only raise a reasonable doubt about the existence of the defense, and once this burden is met, the court must provide the instruction and inform the jury that the prosecution has the burden to disprove the defense beyond a reasonable doubt. (Ibid.; see People v. Mower (2002) 28 Cal.4th 457, 479-481 122 Cal. Rptr. 2d 326, 49 P.3d 1067; People v. Mentch (2008) 45 Cal.4th 274, 292-294 85 Cal. Rptr. 3d 480, 195 P.3d 1061 (conc. opn. of Chin, J.); People v. Saavedra (2007) 156 Cal.App.4th 561, 570-571 67 Cal. Rptr. 3d 403.)