Defendant Whose Caregiving Consists Primarily of Supplying Marijuana and Instructing on Its Use Cannot Qualify as Primary Caregiver Under Compassionate Use Act

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In People v. Mentch (2008) 45 C.4th 274, 85 C.R.3d 480, 195 P.3d 1061, defendant operated a caregiving and consultancy business intended to give people safe access to medical marijuana. As part of his business, defendant grew and provided marijuana to five individuals for whom doctors had recommended the use of medical marijuana to relieve symptoms. Defendant counseled the individuals about the best strains to use for their ailments and the cleanest way to use the marijuana. The individuals paid defendant for the marijuana to help cover his costs of growing it, but he did not profit from the sales. On a "sporadic" basis, defendant took several of the individuals to medical appointments. Defendant was arrested and charged with the cultivation of marijuana and its possession for sale. At trial, defendant requested a jury instruction describing the affirmative defense available to primary caregivers under Health & Saf.C. 11362.5(d). The trial court declined to give the instruction, and the jury convicted defendant of both charges. The Court of Appeal reversed, concluding that defendant presented enough evidence to support an instruction on the primary caregiver defense. Held, reversed.

(a) Health & Saf.C. 11362.5(d), part of the voter-approved Compassionate Use Act of 1996, provides that the statutes outlawing possession and cultivation do not apply "to a patient's primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient." Health & Saf.C. 11362.5(e) defines "primary caregiver" as "the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, or safety of that person." Thus, a defendant who asserts primary caregiver status first must prove that he or she consistently, by repeated actions over time, assumed responsibility for a patient's housing, health, or safety. (45 C.4th 283.) Further, the use of the past participle "has consistently assumed" reinforces the inference that primary caregiver status requires an existing, established relationship between the caregiver and the patient, not one that arises after the fact in an effort to immunize criminal behavior. (45 C.4th 284.) Finally, the primary caregiver must establish his or her status "based on evidence independent of the administration of medical marijuana." (45 C.4th 284.)

(b) The evidence here did not support giving the requested instruction. Although one of the individuals to whom defendant sold marijuana may have been living at his house at the time of his arrest, there was no evidence that he had provided care for her in the preceding year and a half when he was selling her marijuana. Although defendant testified that he took "a couple" of patients to medical appointments "sporadically," the "sporadic assumption of responsibility is the antithesis of a consistent assumption of responsibility." (45 C.4th 288, 289.) The other actions defendant points to as "caregiving" consisted only of providing marijuana, which cannot independently establish an assumption of responsibility for caregiving. Finally, defendant testified that he occasionally grew too much marijuana and provided the excess to marijuana clubs. Primary caregiver status would provide defendant with a defense only if it extended to all the marijuana he possessed or cultivated. (45 C.4th 289.)

(c) Defendant contended in the alternative that Health & Saf.C. 11362.765 provided him with a defense to the charges. (45 C.4th 290.) Health & Saf.C. 11362.765(b)(3) grants immunity to those who assist in administering medical marijuana or acquiring the skills necessary to cultivate it, but only for that specific conduct. This means that defendant could not be charged with cultivation or possession for sale on the sole basis of his actions in administering, advising, or counseling. "It does not mean [defendant] could not be charged with cultivation or possession for sale on any basis; to the extent he went beyond the immunized range of conduct, i.e., administration, advice, and counseling, he would, once again, subject himself to the full force of the criminal law." (45 C.4th 292.) Because defendant indisputably did much more than administer, advise, and counsel, Health & Saf.C. 11362.765 provides him no defense, and defendant was not entitled to an instruction on it. (45 C.4th 292.)

Witkin References

On Compassionate Use Act generally, see 2 Cal. Crim. Law (3d), Crimes Against Public Peace and Welfare, §70 et seq.

On Health & Saf.C. 11362.5, see 2 Cal. Crim. Law (3d), Crimes Against Public Peace and Welfare, §70.

On Health & Saf.C. 11362.765, see 2 Cal. Crim. Law (3d), Crimes Against Public Peace and Welfare, Supp., §70B.