The prosecution cannot challenge a medical marijuana collective defense before trial

Jay Leiderman
By: Jay Leiderman
April 15 2016


            The People’s request for a Evidence Code § 402 hearing of defendant’s factual witnesses, if one is made, amounts to nothing more than an attempt to depose defendants witnesses, and is not authorized by law.

Evidence Code § 402.  Provides a limited scope that permits a hearing on preliminary facts, where Evidence Code § 402 provides,


(a) When the existence of a preliminary fact is disputed, its existence or nonexistence shall be determined as provided in this article.


(b) The court may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury; but in a criminal action, the court shall hear and determine the question of the admissibility of a confession or admission of the defendant out of the presence and hearing of the jury if any party so requests.

(c) A ruling on the admissibility of evidence implies whatever finding of fact is prerequisite thereto; a separate or formal finding is unnecessary unless required by statute.

In People v. Galambos (2002) 104 Cal. App. 4th 1147, a pre-MMP medical marijuana case, the Court has concluded that at least where a defense is novel and raises questions whether there is sufficient evidence to sustain each element of the proffered defense, a hearing under Cal. Evid. Code § 402 is justified so that otherwise irrelevant and confusing matter is not placed before the jury. Often novel, necessity defenses in particular risk the presentation of otherwise irrelevant and confusing evidence to the jury if the defense cannot be established. And it is the novelty of the defense that raises the prospect that the defendant might fail to establish its elements, and in such a case, that very novelty would also allow the jury to hear irrelevant evidence that would confuse the issues.  (See People v. Galambos (2002) 104 Cal. App. 4th 1147, 1158.)  Moreover, the California Supreme Court has recommended the use of the procedure under Evidence Code section 402 for novel matters.  (See People v. Bledsoe (1984) 36 Cal.3d 236, 245, footnote 6)

However, the Medical Marijuana Collective defense is not a “novel” defense.  It is a statutory defense that has been supported and upheld by both the California Appellate Curt and the California Supreme Court. (See H&S § 11362.775, People v. Urziceanu (2005) 132 Cal. App. 4th 747, and People v. Wright (2006) 40 Cal. 4th 81.)   Furthermore, Defendant requests that this court take judicial notice that the medical marijuana collective defense has been litigated in this very court on at least a monthly basis, if not a daily basis.

Here, Defendant has presented the existence of a preliminary fact, which the People cannot dispute.  Either the collective administrator is going to testify, or he is not, this is not in dispute.  If the collective administrator does testify to the facts submitted herein, Defendants will be entitled to a medical marijuana collective defense as provided by case law under People v. Urziceanu (2005) 132 Cal. App. 4th 747   Since the medical marijuana collective defense is not a novel defense, and since there is no dispute regarding preliminary facts of the case, the People are not entitled to a 402 hearing of Defendants’ factual witnesses prior to any mention of medical marijuana or a medical marijuana collective defense.



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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Jay Leiderman does frequent media appearances concerning a broad array of criminal justice topics

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:


7 thoughts on “The prosecution cannot challenge a medical marijuana collective defense before trial

  1. Oh. I just yelled at a cop (female, San Diego). Told her through my car window I didn’t care what she thought unless it was about me. She dropped in behind me. I screamed her get off my ass…as dope; it’s my birthday. I slept like a queen. She decided to help. Where? The freeways. Ambulance comes screaming. I went to the side very late. I could seal that propane Coleman out of the wind current.
    Welcome to the compactor.

  2. The police shoot homeless. You catch ’em, what? With Evidence. it goes, prefer can’t afford to try a cop. Let me cop. let’s knock some heads together.

    Push back the attack on sword face.

    Roger that.
    What am I saying?
    There’s’ll be main for heads turnin’. Just don’t turn it up; turn it out. They’re all assemning. May fault.

  3. Oh no two people have a conflict with their vacation scuelhde, the state will fall apart. Come on what is wrong with you folks. The only thing to worry about is that sweeny will try and give away the state while he is in con

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