When is a defendant entitled to the medical marijuana defense jury instruction?

Jay Leiderman
By: Jay Leiderman
April 11 2016


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.




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.

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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/

One thought on “When is a defendant entitled to the medical marijuana defense jury instruction?

  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?




    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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