DEFENDANT IS IMMUNE FROM PROSECUTION FOR COLLECTIVELY CULTIVATING MEDICAL MARIJUANA UNDER THE AUTHORITY OF HEALTH AND SAFETY CODE SECTION 11362.775; DEFENDANT IS ENTITLED TO RAISE THE MEDICAL MARIJUANA DEFENSE
Here, defendant was also participating in a collective cultivation project which involved a limited number of Collective members. At the time of arrest defendant had a valid MMJ physician’s recommendation and was involved as a cultivating member of collectives within the state of California. Accordingly, Defendant is entitled to raise the medical marijuana defense.
The Medical Marijuana Program Act, was enacted by the legislature after the passage of The Compassionate Use Act in order to establish guidelines for the cultivation and use of medicinal marijuana [CUA and MMPA]. The intent of the legislature in enacting the Medical Marijuana Program Act was to “enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects.” (California Health and Safety Code, Division 10, Chapter 6, Article 2.5 (commencing with Section 11362.7) section 1, subsection (b)(3), added by Stats.2003, chapter, 875 (S.B.420), § 1(b)(3), 2003 Cal. Legis. Serv. Ch. 875 (WestLaw), see also West’s Annotated California Codes, Health and Safety §11362.7, Historical and Statutory Notes.) The statutes gave rise to teh medical marijuana defense at issue herein.
Also among its purposes in enacting the statute, was to:
“[c]larify the scope of the application of the act and facilitate the prompt identification of qualified patients and their designated primary caregivers in order to avoid unnecessary arrest and prosecution of these individuals and provide needed guidance to law enforcement officers.” (Stats. 2003, ch. 875, § 1.) Additionally, the Legislature declared that a further purpose of the legislation was to “address additional issues that were not included within the act, and that must be resolved in order to promote the fair and orderly implementation of the act.” That is the essence of the medical marijuana defense.
People v. Wright (2006) 40 Cal. 4th 81, 93 Emphasis added
Thus, the legislature ensured that the use of medicinal marijuana and its related production remain insulated from prosecution with the enactment of the Medical Marijuana Program H&S § 11362.7 et seq. The Medical Marijuana Program expanded the scope of the protections provided by Compassionate Use Act to include protections against criminal sanctions not just from charges of cultivating marijuana under Health & Safety Code §11358 but also immunity from charges under H&S §§ 11359 (possession for sale) and 11360 (transportation). In People v. Wright (2006) 40 Cal. 4th 81, the California Supreme Court held that the Medical Marijuana Program statutes which prohibit “criminal sanctions” (such Health & Safety Code §11362.775) also provide immunity from prosecution:
“The Legislature extended certain protections [provided by the CUA] to [qualified] individuals. Those protections included immunity from prosecution for a number of marijuana-related offenses that had not been specified in the CUA,…”
People v. Wright (2006) 40 Cal. 4th 81, 93 emphasis added
Furthermore, “the Legislature sought [in part] to: … (3) Enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects.” (Stats. 2003, ch. 875, § 1, subd. (b).)” People v. Urziceanu (2005) 132 Cal. App. 4th 747, 783
“[T]he Medical Marijuana Program Act contains section 11362.775, which 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.’ Thus, the Legislature also exempted those qualifying patients and primary caregivers who collectively or cooperatively cultivate marijuana for medical purposes from criminal sanctions for possession for sale, transportation or furnishing marijuana, maintaining a location for unlawfully selling, giving away, or using controlled substances, managing a location for the storage, distribution of any controlled substance for sale, and the laws declaring the use of property for these purposes a nuisance…This new law represents a dramatic change in the prohibitions on the use, distribution, and cultivation of marijuana for persons who are qualified patients or primary caregivers.” (emphasis added)
People v. Urziceanu (2005) 132 Cal. App. 4th 747, 785.
Again in People v. Hochanadel (2009) 176 Cal.App.4th 997, the court upheld the “collective” defense provided under Health and Safety Code section 11362.775 to a charge of sales under Health and Safety Code section 11359 and 11360, explaining as follows:
“As noted, ante, in enacting section 11362.775, the Legislature “exempted those qualifying patients and primary caregivers who collectively or cooperatively cultivate marijuana for medical purposes from criminal sanctions for possession for sale, transportation or furnishing marijuana, maintaining a location for unlawfully selling, giving away, or using controlled substances, managing a location for the storage, distribution of any controlled substance for sale, and the laws declaring the use of property for these purposes a nuisance. [¶] … Its specific itemization of the marijuana sales law indicates it contemplates the formation and operation of medicinal marijuana cooperatives that would receive reimbursement for marijuana and the services provided in conjunction with the provision of that marijuana.” (Urziceanu, supra, 132 Cal.App.4th at p. 785, italics added.) Thus cooperatives and collectives operated by primary caregivers and/or medical marijuana patients may have a defense to certain narcotics offenses, including those charged against defendants in this case.”
People v. Hochanadel (2009) 176 Cal.App.4th 997, 1016-1017.
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This post does not create an attorney-client relationship and does not constitute legal advice. Moreover, the law changes over time. Always consult an attorney before determining what motion s to file and what the current law is as to any particular topic.
Criminal defense attorney and author Jay Leiderman, a California State Bar Certified Criminal Law Specialist can be contacted through the contact page of this website: https://www.jayleiderman.com/contact/