DEFENDANT IS THUS ENTITLED TO A JURY INSTRUCTION REGARDING THE COLLECTIVE MEDICAL MARIJUANA DEFENSE UNDER HEALTH AND SAFETY CODE SECTION 11362.775
In People v. Urziceanu (2005) 132 Cal. App. 4th 747 the Court held that the –
“defendant argues that the Medical Marijuana Program Act provides him with a new defense to the charge of conspiracy to possess marijuana for sale. We conclude the law should be applied retroactively and it does provide defendant with a potential defense. We shall remand for a new trial.”
The basis of the Court’s decision to reverse was that:
“the 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 and fits the defense defendant attempted to present at trial. 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. Contrary to the People’s argument, this law did abrogate the limits expressed in the cases we discussed in part IA which took a restrictive view of the activities allowed by the Compassionate Use Act.”
People v. Urziceanu (2005) 132 Cal. App. 4th 747, 785
The facts presented in People v. Urziceanu (2005) supra –
“at trial, defendant produced substantial evidence that suggests he would fall within the purview of section 11362.775. He presented the court with evidence that he was a qualified patient, that is, he had a qualifying medical condition and a recommendation or approval from a physician. His codefendant Rodger submitted that same evidence as to herself. Defendant further presented evidence of the policies and procedures FloraCare used in providing marijuana [***67] for the people who came to him, including the verification of their prescriptions and identities, the fact that these people paid membership fees and reimbursed the defendant for costs incurred in the cultivation through donations. Further, he presented evidence that members volunteered at the cooperative.
Faced with this evidence …. we cannot conclude the jury would reject defendant’s claim on retrial that his cooperative falls within the parameters of section 11362.775. Thus, we must remand the case for a new trial on this issue.”
People v. Urziceanu (2005) 132 Cal. App. 4th 747, 786.
Here, as in People v. Urziceanu (2005) supra, the evidence to be presented at trial will show that this case will fall within the purview of section 11362.775. Evidence will be presented the court that the defendants, and the collective manager were qualified patients, that that the policies and procedures THE COLLECTIVE used in providing marijuana for its collective members, including the verification of their medical marijuana recommendations and identities, the fact that collective members reimbursed the collective for costs incurred in the cultivation and evidence that members volunteered at the collective. Therefore, pursuant to H&S § 11362.775 and the courts opinion in People v. Urziceanu (2005) supra, the defendants are entitled to discuss the medical marijuana collective defense during opening arguments.
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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/