Medical marijuana: raising a reasonable doubt

Jay Leiderman
By: Jay Leiderman
May 26 2016


With regard to the requisite burden of proof, the Mower court concluded that “as to the facts underlying the defense provided by section 11362.5(d), defendant is required merely to raise a reasonable doubt.” People v. Mower (2002) 28 Cal.4th 457, 481. The Supreme Court analyzed the quantum of proof for analogous factual situations: Most similar is the defense of possession of a dangerous or restricted drug with a physician’s prescription, against a charge of unlawful possession of such a drug. For that defense, a defendant need raise only a reasonable doubt as to his or her possession of the drug in question with a physician’s prescription. Id. at 481. The court concluded that medical marijuana patients should have the same burden as patients who use prescription drugs. “As a result of the enactment of section 11362.5(d), the possession and cultivation of marijuana is no more criminal — so long as its conditions are satisfied — than the possession and acquisition of any prescription drug with a physician’s prescription.” Id. at 482.   Furthermore, since the passage of the Medical Marijuana Program qualified individuals shall not be subject, on that sole basis that they associated in order to collectively cultivate medical marijuana, to criminal liability under Health and Safety Code Section 11358. (See, H&S 11362.775).

Subsequent to the enactment of the CUA and the MMP the burden has dramatically shifted-once the defendant has raised a reasonable doubt by introducing some evidence of lawfulness the burden is on the prosecution to prove beyond a reasonable doubt that the defendant’s conduct was not lawful; In other words, as provided by Mower supra,

 “With respect to many defenses, as has been and is extremely common in the penal law, a defendant has been required merely to raise a reasonable doubt as to the underlying facts. Such defenses relate to the defendant’s guilt or innocence. Perhaps most pertinent here are the defense of possession of a dangerous or restricted drug with a physician’s prescription, against a charge of unlawful possession of such a drug. … The defense of possession of a dangerous or restricted drug with a physician’s prescription negates the element of unlawful possession of such a drug. ”  Mower supra at pp. 399- 480


Without the shift in the burden of proof at the pre-trial stage of criminal matter involving the medical marijuana defense, the limited immunity, which is provided by the CUA and the MMP would become meaningless, contrary to the legislative intent, which was “to avoid unnecessary arrest and prosecution of these individuals”, [persons qualified under the CUA and/or the MMPA.] See, preamble to the Medical Marijuana Program, SB 420 Sec 1(a)(4)(b)(1) 2003 Cal ALS 875.

With respect to the Compassionate Use Act and the Medical Marijuana Program Act, Health and Safety Code § 11362.5 and Health and Safety Code §§ 1362.7 et seq. [CUA and MMPA] are silent with respect to the burden of proof required to overcome a defendant’s claim to the immunities provided by the respective Acts.

In an analogous context the California Supreme Court held in Zamora, at foot note 25, that a defendant may be entitled to a pretrial hearing that is separate and apart from a Penal Code § 995 motion, regarding the jurisdictional issue connected to the statute of limitations:

“the limitation question is a basic jurisdictional issue and the bar thereof is aimed as much at the prevention of untimely prosecutions as it is at the prevention of untimely convictions. If it appears possible that the evidence will establish as a matter of law that the period of limitation has run, then judicial economy may be far better served if the issue is resolved at the earliest possible stage of the proceedings rather than waiting until an entire trial on multiple issues is completed. Moreover, the determination of the trial court after such a hearing will be similar to that on a motion for a directed verdict (§§ 1118, 1118.1) without the necessity of first litigating the merits of the case. ….At such a hearing, it may properly be considered whether the reasonable diligence requirement of section 800 has been complied with. We emphasize that there is no right to such a preliminary determination of the limitation issue. In each case the court should, before granting a hearing on the issue, consider such factors as the likelihood that the People will be unable to meet their burden of proof on the question (citation omitted), and the potential length of both the hearing and a full trial on the merits. If the People prevail after such a hearing, then the limitation issue must still be resolved by the jury if it remains disputed by the defendant.”


People v. Zamora (1976) 18 Cal. 3d 538, 563-564 fn 25


As in Zamora, the Court should determine through these offers of proof whether the prosecution is likely to meet their burden of proof to overcome the immunities asserted by the defendant.  If it is unlikely that the Prosecution will prevail at trial, then the Kelly decision directs that the matter should be dismissed in order to avoid unnecessary prosecution of qualified individuals who assert their immunities under the Compassionate Use Act and/or the Medical Marijuana Program.


At Jay Leiderman Law, we have proven results over years of practice, and we are uniquely qualified to represent you in your time of need. We are situated in Ventura, California but we handle cases throughout the state. We have the expertise, experience and skill to handle numerous types of legal matters.  Jay Leiderman is one of only a few CERTIFIED CRIMINAL LAW SPECIALISTS in the area.  He handles every kind of criminal law case. He is famous for defending medical marijuana cases and computer hacking cases, though the bulk of his practice is a generous mix of those cases plus serious felonies and misdemeanors.  Read more at his Wikipedia page: or his homepage

“A creative and multi-faceted vigorous defense comes from a creative, multifaceted lawyer.” – Jay Leiderman.

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Attorney Jay Leiderman intently studies his computer. He is always looking for that one case or one piece of evidence that will turn the case around

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:



2 thoughts on “Medical marijuana: raising a reasonable doubt

  1. Stalker gets arrested for stalking! Rot in Hell, JoJo. You lost at life. Fucker! Fuck you, Sue Basko, too. You’re next. Crooked psycho narcissist co-conspirator. You gonna hide without your sociopath to protect you?;jsessionid=0F1D910D58621C27ED3D6379FC3304B0

    JoJo Camp was arrested yesterday in Lakewood, Colorado. He is currently being held on numerous charges including displaying a deadly weapon, stalking, harassment, violating a restraining order, assault, and bribery.

    JoJo, who hasn’t been out of jail much in recent years, made national headlines when he hacked a university computer network, fled the state, and then was apprehended while trying to sell the identities of thousands of students and faculty to an undercover FBI officer.

    JoJo spent time in prison for the hacking and was released early only to be sent back to finish out his sentence after stalking and harassing a Florida lawyer and her child.

    After being released a second time, JoJo continued his harassment of the lawyer and had a permanent restraining order put out against him last year. Naturally he chose to ignore the PRO but left New York and moved to Colorado.

    JoJo attempted to start a business and a new life in Colorado in Mime related activities (yes, Mime) but wasn’t too successful. He was arrested early Tuesday morning after being set up by one of his victims. It appears he’s being held without bail.

    Mr Camp was running as an independent candidate for Colorado House District 1. Let’s hope this arrest doesn’t interupt his campaign too much.

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