What must the prosecution prove to overcome the medical marijuana defense?

Jay Leiderman
By: Jay Leiderman
April 20 2016


Once the defendant has come forward with the evidence sufficient to raise a reasonable doubt about the lawfulness of his marijuana cultivation the prosecution has the burden of establishing that the elements of the medical marijuana defense do not exist. As stated in People v. Jones (2003) 112 Cal.App.4th 341, 350:

“If, to prevail at trial, the defendant is required only to raise a reasonable doubt as to whether he had a physician’s approval to use marijuana, then no greater burden can be imposed on the defendant at a pretrial section 402 hearing called to challenge his Compassionate Use Act defense. If the defendant produces evidence at the section 402 hearing sufficient to raise a reasonable doubt as to whether he had a physician’s approval to use marijuana, then the gatekeeping function of a section 402 hearing is satisfied and the defense should go to the jury to decide. Only if the defendant fails to produce sufficient evidence to raise a reasonable doubt about the existence of an approval is the trial court justified in keeping the matter from the jury.”


People v. Jones (2003) 112 Cal.App.4th 341, 350


CALCRIM 2370, correctly sets the burden and states the following:

“Possession or cultivation of marijuana is lawful if authorized by the Compassionate Use Act. The Compassionate Use Act allows a person to possess or cultivate marijuana (for personal medical purposes/ [or] as the primary caregiver of a patient with a medical need) when a physician has recommended [or approved] such use. The amount of marijuana possessed or cultivated must be reasonably related to the patient’s current medical needs. The People have the burden of proving beyond a reasonable doubt that the defendant was not authorized to possess or cultivate marijuana for medical purposes. If the People have not met this burden, you must find the defendant not guilty of this crime.”


            The “BENCH NOTES” to CALCRIM 2370 state the following:


“The medical marijuana defense may be raised to a charge of violating Health and Safety Code section 11358. (See Health & Saf. Code, § 11362.5.) The burden is on the defendant to produce sufficient evidence to raise a reasonable doubt that possession was lawful. (People v. Mower (2002) 28 Cal.4th 457, 460 [122 Cal.Rptr.2d 326, 49 P.3d 1067]; People v. Jones (2003) 112 Cal.App.4th 341, 350 [4 Cal.Rptr.3d 916] [error to exclude defense where defendant’s testimony raised reasonable doubt about physician approval]; see also People v. Tilehkooh (2003) 113 Cal.App.4th 1433, 1441[7 Cal.Rptr.3d 226] [defendant need not establish “medical necessity”].) If the defendant introduces substantial evidence, sufficient to raise a reasonable doubt that the possession may have been lawful under the act, the court has a sua sponte duty to give the bracketed paragraph of medical marijuana instructions.” (emphasis added)




            Despite this volume of case law on the “collective” defense pursuant to Health and Safety Code section 11362.775, the “BENCH NOTES” to CALCRIM 2350 (possession for sale of marijuana) state the following:

“Until courts of review provide further clarification, the court will have to determine whether under the facts of a given case the compassionate use defense should apply pursuant to Health & Saf. Code, §§ 11362.765 and 11362.775.”


Thus, the elements of the defenses provided for in the Compassionate Use Act (CUA) and the Medical Marijuana Program (MMP), are as follows,

First, the patients and/or designated primary caregivers were  “qualified patients,” in that a licensed physician had recommended or approved his/[her] personal use of marijuana to treat a condition specified in the CUA (See, H&S §§ 11362.7 and 11362.765);


Second, that the quantity being cultivated, to the extent it exceeded six mature or 12 immature marijuana plants, was either for personal medical use and reasonably related to the patients current medical needs (People v. Kelly 47 Cal.4th 1008), or a quantity approved by a physician post arrest (People v. Kelly 47 Cal.4th 1008, 1016, fn.8.;  H&S § 11362.77, subds. (a), (b)).


Third, that the marijuana on which the charges are based actually was for his … own personal medical use, or the personal medical use of the patient whom the marijuana was to be provided to under a caregiver, cooperative and/or collective arrangement. See, H&S §§ 11362.5 and H&S 11362.775; People v. Urziceanu (2005) 132 Cal. App. 4th 747, 785).

Thus, once a defendant raises a reasonable doubt that their case involves a group of qualified medical marijuana patients who have collectively cultivated and processed medical marijuana within the statutory guidelines provided by the MMP, that defendant shall not “solely on the basis of that fact be subject to state criminal sanctions under Section 11357, 11358…” (see, H&S 11362.775).


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: https://en.wikipedia.org/wiki/Jay_Leiderman or his homepage www.jayleiderman.com

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

medical marijuana defense reasonable doubt
Jay Leiderman is a California State Bar Board of Legal Specialization Certified Criminal Law Specialist

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/


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