Key Medical Marijuana Decisions – People v. Mower

“At trial, defendant testified that he kept the 31 marijuana plants [only] for himself” and “denied the truth of his hospital statement concerning the two other persons . . . claiming that he made the statement under the influence of various medications that he then was receiving.” Id. at 466. Moreover, the defendant’s expert witness “testified . . . that the plants probably would yield a harvest of 4.35 pounds, well below the six pounds that he said the federal government supplies yearly to patients in its Investigational New Drug program.” Id. On the other hand, the People’s expert witness “testified . . . that the plants would yield a harvest of between 31 and 62 pounds.” Id. “After the presentation of evidence, the trial court instructed the jury that CUA provides the defendant a defense to the charges of possession and cultivation of marijuana based on his claim that he was a qualified patient. Id. However, the trial court also instructed the jury “that defendant bore the burden of proof as to the facts underlying this defense, and that he was required to prove those facts by a preponderance of the evidence.” Id. at 476. On these instructions, the jury found the defendant guilty of possession and cultivation of marijuana. Id. at 466.

On appeal, the defendant argued that the CUA “grants a . . . ‘complete’ immunity from prosecution, shielding him not only from prosecution but even from arrest, and requiring . . . law enforcement officers to conduct an adequate investigation prior to his arrest.” Id. at 466−67.

2. What is the allocation and weight of the burden of proof for raising a defense under the CUA?

1(b). Rather, the CUA provides “a limited immunity from prosecution, which not only allows a defense at trial, but also permits a motion to set aside an indictment or information prior to trial.” 28 Cal. 4th at 470. The CUA “renders possession and cultivation of the marijuana noncriminal for a qualified patient or primary caregiver.” Id. at 471. One of the purposes of the CUA is “‘[t]o ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.” Id. at 471−72 (citing the CUA) (emphasis and alteration in original). Previously, the Supreme Court of California “held that the prohibition against criminal ‘prosecut[ion]’ and criminal ‘punishment’ found in Insurance Code section 12924(b) ‘[could] be given its proper effect unless it . . . is recognized as a proper basis for’ setting aside an indictment or information.” Id. at 472 (citations omitted). “By parity of reasoning, . . . the prohibition against ‘criminal prosecution’ as well as ‘criminal . . . sanction’ . . . that is implicit in [the CUA] cannot be given its proper effect unless it too is recognized as a proper basis for setting aside an indictment or information.” Id. (citations omitted). The “ballot pamphlet materials do not speak directly to the issue whether [the CUA] permits a motion to set aside an indictment or information prior to trial.” Id. “But they say nothing to the contrary.” Id.

2(a). Defendants have “the burden of proof as to the facts underlying the defense provided by the [CUA].” 28 Cal. 4th at 477. Since the statute does not expressly allocate any burden of proof, “the answer is provided by the so-called rule of convenience and necessity . . . .” Id. “Application of the rule of convenience and necessity supports the conclusion that [the CUA] should be interpreted to allocate to the defendant the burden of proof . . . .” Id. “First, it would not be unduly harsh or unfair to allocate to the defendant the burden of proving the facts underlying this defense.” Id. The facts required to establish the defense—that he or she was a “patient” or “primary caregiver”—under the statute are “peculiarly within a defendant’s personal knowledge, and proof of their nonexistence by the prosecution would be relatively difficult or inconvenient.” Id. “Second, [the CUA] constitutes an exception” to the crimes of possession and cultivation of marijuana. Id.

2(b). To raise a defense under the CUA a “defendant is required merely to raise a reasonable doubt.” 28 Cal. 4th at 481. The statute itself “does not expressly define the weight of the burden of proof.” Id. at 478. However, with defenses that “relate to the defendant’s guilt or innocence,” “a defendant has been required merely to raise a reasonable doubt as to the underlying facts.” Id. at 479 (citations omitted). For example, “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”. Id. at 479−80 (citations omitted). “Such defenses relate to the defendant’s guilt or innocence because they relate to an element of the crime in question.” Id. at 480 (emphasis in original). In contrast, “[w]hen a statute allocates the burden of proof to a defendant as to a fact collateral to his or her guilt, however, the defendant may be required to prove that fact by a preponderance of the evidence.” Id. Like the defense of possession of a dangerous or restricted drug with a physician’s prescription, “the defense provided by [the CUA] relates to the defendant’s guilt or innocence, because it relates to an element of the crime of possession or cultivation of marijuana.” Id. at 482 (emphasis in original). “As a result of the enactment of [the CUA], the possession and cultivation of marijuana is no more criminal—so long as its conditions are satisfied . . . .” Id. “Thus, this defense negates the element of the possession or cultivation of marijuana to the extent that the element requires that such possession or cultivation be unlawful.” Id. (emphasis in original).

First and foremost, the decision completely circumscribes the possibility of the CUA offering anymore than a defense after arrest. This part of the decision can be seen as a huge defeat for medical marijuana patients and the voters that enacted the CUA, especially considering that the conclusion was not a necessary outcome. Using a plain, commonsense reading of the statute and emphasizing other portions of the ballot pamphlet arguments, the Court could have decided the CUA does provide immunity from arrest. See Damian A. Martin, Comment, California Medical Marijuana Law: The Voters and Legislature Have Made Their Decision; Now Let Them Interpret It!, J.L. Econ. & Pol’y (forthcoming 2014–2015).

After taking away any immunity from arrest, the Court does attempt to throw medical marijuana patients a bone by allowing patients to use a CUA defense to set aside an indictment or information prior to trial. However, as a practical matter, this option is merely a “paper tiger” because the legal basis to set aside an indictment is directly tied to a factual question resolved at trial. Here are the case citations and simple logic to reach this conclusion:

1. “To prevail, a [medical marijuana patient] must show that . . . he or she was indicted or committed without reasonable or probable cause to believe that he or she was guilty . . . in view of his or her status as a qualified patient or primary caregiver. People v. Mower, 28 Cal. 4th 457, 473 (2002) (emphasis added) (citation omitted) (internal quotation marks omitted).

2. An individual establishes his or her status as a qualified patient or primary caregiver by possessing marijuana “reasonably related to the patient’s current medical needs.” See People v. Trippet, 56 Cal. App. 4th 1532, 1549 (1997) (emphasis added).

3. “[T]he ‘patient’s current medical needs’ is . . . a factual question to be determined by the trier of fact.” People v. Trippet, 56 Cal. App. 4th 1532, 1549 (1997) (emphasis added).

These issues aside, for better or worse (mostly worse) the Mower decision is not going anywhere as far as the courts are concerned, i.e. the decision is locked in as precedent and extremely unlikely to be overturned by another court decision. Therefore, any expansion of medical marijuana patient rights (e.g. immunity from arrest) will occur via initiative or legislation. Mower then is instructive as to how courts will then interpret any future initiatives or legislations. The Court primarily relied on two tools for determining the CUA does not provide patients immunity from arrest:

1. Comparisons with other statutes that the Court previously determined to provide immunity from arrest; and

2. Selective quotation of the ballot pamphlet arguments

In doing so, the Court gives short shrift to the plain, commonsense meaning of the statutory language and to ballot pamphlet arguments that cut the other way. See Damian A. Martin, Comment, California Medical Marijuana Law: The Voters and Legislature Have Made Their Decision; Now Let Them Interpret It!, J.L. Econ. & Pol’y (forthcoming 2014–2015).

The key takeaways then for future drafters of marijuana-related statutes are:

1. Determine an effect to be achieved (e.g. immunity from arrest)

2. Find a decision where the Court determined that another statute achieved that effect

3. Use the exact language from the statute that the Court determined achieved the desired effect

4. Pepper the ballot pamphlet or legislative history with quotations suggesting the statute achieves the desired effect

People v. Mower, 28 Cal. 4th 457, 464, 49 P.3d 1067, 1070 (2002).

We conclude that, under general principles of California law, the burden of proof as to the facts underlying the section 11362.5(d) defense may, and should, be allocated to a defendant, but the defendant should be required merely to raise a reasonable doubt as to those facts rather than to prove them by a preponderance of the evidence.

People v. Mower, 28 Cal. 4th 457, 464, 49 P.3d 1067, 1071 (2002).

Thus, we conclude that the trial court’s instruction in this case, requiring defendant to prove the underlying facts by a preponderance of the evidence, not only was erroneous but also reversible because it went to the heart of the case against defendant.

People v. Mower, 28 Cal. 4th 457, 464, 49 P.3d 1067, 1071 (2002).

To be sure, law enforcement officers must have probable cause before they lawfully may arrest a person for any crime.

People v. Mower, 28 Cal. 4th 457, 468, 49 P.3d 1067, 1073 (2002) (citations omitted).

The conclusion that section 11362.5(d) does not grant a defendant the type of “complete” immunity from prosecution urged by defendant below, however, does not signify that the provision does not grant any immunity from prosecution at all.

People v. Mower, 28 Cal. 4th 457, 469, 49 P.3d 1067, 1074 (2002).

As we shall explain, we believe that section 11362.5(d) reasonably must be interpreted to grant a defendant a limited immunity from prosecution, which not only allows a defense at trial, but also permits a motion to set aside an indictment or information prior to trial.

People v. Mower, 28 Cal. 4th 457, 470, 49 P.3d 1067, 1074 (2002).

Thus, within its scope, section 11362.5(d) renders possession and cultivation of marijuana noncriminal—that is to say, it renders possession and cultivation of the marijuana noncriminal for a qualified patient or primary caregiver.

People v. Mower, 28 Cal. 4th 457, 471, 49 P.3d 1067, 1075 (2002).

By parity of reasoning, we now hold that the prohibition against “criminal prosecution” as well as “criminal . . . sanction” (§ 11362.5, subd. (b)(1)(B)) that is implicit in section 11362.5(d) cannot be given its proper effect unless it too is recognized as a proper basis for setting aside an indictment or information.

People v. Mower, 28 Cal. 4th 457, 472, 49 P.3d 1067, 1076 (2002).

Proposition 215’s ballot pamphlet materials do not speak directly to the issue whether section 11362.5(d) permits a motion to set aside an indictment or information prior to trial. But they say nothing to the contrary.

People v. Mower, 28 Cal. 4th 457, 472, 49 P.3d 1067, 1076 (2002).

To prevail, a defendant must show that, in light of the evidence presented to the grand jury or the magistrate, he or she was indicted or committed “without reasonable or probable cause” to believe that he or she was guilty of possession or cultivation of marijuana in view of his or her status as a qualified patient or primary caregiver.

People v. Mower, 28 Cal. 4th 457, 473, 49 P.3d 1067, 1076 (2002) (citations omitted).

Of course, in the absence of reasonable or probable cause to believe that a defendant is guilty of possession or cultivation of marijuana, in view of his or her status as a qualified patient or primary caregiver, the grand jury or the magistrate should not indict or commit the defendant in the first place, but instead should bring the prosecution to an end at that point.

People v. Mower, 28 Cal. 4th 457, 473, 49 P.3d 1067, 1077 (2002).

Evidence of a defendant’s status as a qualified patient or primary caregiver exculpates him or her from guilt of the crimes of possession or cultivation of marijuana, because such a status renders possession and cultivation of marijuana noncriminal.

People v. Mower, 28 Cal. 4th 457, 473 n.5, 49 P.3d 1067, 1077 n.5 (2002).

We agree that, in light of its language and purpose, section 11362.5(d) must be interpreted to allow a defense at trial. For a defendant to be able to avoid “criminal prosecution or sanction” (§ 11362.5, subd. (b)(1)(B)) when charged with possession or cultivation of marijuana in violation of section 11357 or 11358, he or she must be able to defend on the ground that these provisions do “not apply” (§ 11362.5(d)) because he or she is a qualified patient or primary caregiver.

People v. Mower, 28 Cal. 4th 457, 474−75, 49 P.3d 1067, 1077−78 (2002).

Furthermore, ballot pamphlet materials for Proposition 215 expressly acknowledge that section 11362.5(d) allows a defense at trial.

People v. Mower, 28 Cal. 4th 457, 475, 49 P.3d 1067, 1078 (2002).

Applying the foregoing principles, we conclude 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, 28 Cal. 4th 457, 481, 49 P.3d 1067, 1082 (2002).

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.

People v. Mower, 28 Cal. 4th 457, 482, 49 P.3d 1067, 1082 (2002).

Inasmuch as this statute provides that sections 11357 and 11358, which criminalize the possession and cultivation of marijuana, “shall not apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician” (§ 11362.5(d)), the provision renders possession and cultivation of marijuana noncriminal under the conditions specified.

People v. Mower, 28 Cal. 4th 457, 482, 49 P.3d 1067, 1082−83 (2002).

In sum, the defense provided by section 11362.5(d) relates to the defendant’s guilt or innocence, because it relates to an element of the crime of possession or cultivation of marijuana. Thus, this defense negates the element of the possession or cultivation of marijuana to the extent that the element requires that such possession or cultivation be unlawful.

People v. Mower, 28 Cal. 4th 457, 482, 49 P.3d 1067, 1083 (2002) (emphasis in original).