Ct.App. 2/3 No. B195624 Los Angeles County Super. Ct. No. VA092724. Michael L. Schuur, Temporary Judge*fn1
The opinion of the court was delivered by: George, C. J.
Health and Safety Code section 11362.77,*fn2 which is part of the Medical Marijuana Program (MMP) (§ 11362.7 et seq.), prescribes a specific amount of marijuana that a "qualified patient" may possess or cultivate. We granted review to determine whether this aspect of section 11362.77 is invalid under California Constitution, article II, section 10, subdivision (c), insofar as it amends, without approval of the electorate, the Compassionate Use Act (CUA) (§ 11362.5), an initiative measure adopted by the voters as Proposition 215 in 1996. We conclude, consistently with the decision of the Court of Appeal below (and with the position of both parties in the present litigation), that insofar as section 11362.77 burdens a defense under the CUA to a criminal charge of possessing or cultivating marijuana, it impermissibly amends the CUA and in that respect is invalid under article II, section 10, subdivision (c). We also conclude, consistently with the views of both parties in the present litigation, that the Court of Appeal erred in concluding that section 11362.77 must be severed from the MMP and hence voided.
In 1996, the California electorate approved Proposition 215 and adopted the CUA, which provides: "Section 11357, relating to the possession of marijuana, and Section 11358, relating to the 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, subd. (d).)*fn3 By this and related provisions, the CUA provides an affirmative defense to prosecution for the crimes of possession and cultivation. (See generally People v. Mower (2002) 28 Cal.4th 457, 474 (Mower); People v. Wright (2006) 40 Cal.4th 81, 98 (Wright).) The CUA does not grant immunity from arrest for those crimes, however. So long as the authorities have probable cause to believe that possession or cultivation has occurred, law enforcement officers may arrest a person for either crime regardless of the arrestee's having a physician's recommendation or approval. (Mower, supra, 28 Cal.4th 456, 467-469.)
Nor does the CUA specify an amount of marijuana that a patient may possess or cultivate; it states instead that the marijuana possessed or cultivated must be for the patient's "personal medical purposes." (§ 11362.5, subd. (d), italics added.) An early decision construed this provision of the CUA as establishing "that the quantity possessed by the patient or the primary caregiver, and the form and manner in which it is possessed, should be reasonably related to the patient's current medical needs." (People v. Trippet (1997) 56 Cal.App.4th 1532, 1549, italics added (Trippet).)
Despite - or, perhaps, because of - this judicial construction of the CUA, questions persisted for both qualified medical marijuana patients and for law enforcement officers relating to enforcement of and arrest for possession, cultivation, and other related marijuana offenses. In 2003, the Legislature found that "reports from across the state have revealed problems and uncertainties in the [CUA] that have impeded the ability of law enforcement officers to enforce its provisions as the voters intended and, therefore, have prevented qualified patients and designated primary caregivers from obtaining the protections afforded by the act." (Stats. 2003, ch. 875, § 1, subd. (a)(2).) In response, the Legislature enacted the MMP (§ 11362.7 et seq.) to "[c]larify the scope of the application of the [CUA] and facilitate the prompt identification of qualified patients and their designated primary caregivers in order to avoid unnecessary arrest and prosecution of these individuals and provide needed guidance to law enforcement officers." (Stats. 2003, ch. 875, § 1, subd. (b)(1), italics added; see also Wright, supra, 40 Cal.4th 81, 93; People v. Mentch (2008) 45 Cal.4th 274, 290 [the MMP "immunizes from prosecution a range of conduct ancillary to the provision of medical marijuana to qualified patients"].)
Although the MMP did not literally amend the statute that established the CUA (that is, § 11362.5), the MMP did add 18 new code sections that address the general subject matter covered by the CUA. At the heart of the MMP is a voluntary "identification card" scheme that, unlike the CUA - which, as noted, provides only an affirmative defense to a charge of possession or cultivation - provides protection against arrest for those and related crimes. Under the MMP, a person who suffers from a "serious medical condition,"*fn4 and the designated "primary caregiver"*fn5 of that person, may register and receive an annually renewable identification card that, in turn, can be shown to a law enforcement officer who otherwise might arrest the program participant or his or her primary caregiver. Section 11362.71, subdivision (e) of the MMP provides in full: "No person or designated primary caregiver in possession of a valid identification card shall be subject to arrest for possession, transportation, delivery, or cultivation of medical marijuana in an amount established pursuant to this article [that is, the 18 new sections comprising the MMP], unless there is reasonable cause to believe that the information contained in the card is false or falsified, the card has been obtained by means of fraud, or the person is otherwise in violation of the provisions of the article." (Italics added.)*fn6
The "amount established pursuant to this article" is addressed in section 11362.77, the statute at issue in this case. That section does two things: (1) it establishes quantity limitations, and (2) it sets forth a "safe harbor" by authorizing possession of specific amounts of medical marijuana within those specific limits.*fn7
Subdivision (a) of section 11362.77 provides that a "qualified patient"*fn8 or primary caregiver may "possess no more than eight ounces of dried marijuana," and may, "[i]n addition,... maintain no more than six mature or 12 immature marijuana plants." (Id., subd. (a), italics added.) The next two subdivisions of the same section provide qualified exceptions for even greater amounts. Subdivision (b) specifies that a patient may "possess an amount of marijuana consistent with the patient's needs," on condition that the patient "has a doctor's recommendation" stating that the quantity set out in subdivision (a) is insufficient for the patient's medical needs.*fn9 Subdivision (c) specifies that cities or counties may retain or enact guidelines allowing greater quantities than those set out in subdivision (a). These aspects of section 11362.77 evidently were designed to provide an objective, bright-line standard in lieu of the subjective, highly individualized reasonable-amount standard set forth in the CUA as construed by Tripett, supra, 56 Cal.App.4th at page 1549, thereby providing law enforcement officers with uniform standards, and providing patients who meet those standards (and their primary caregivers) with predictability. (See, e.g., Stats. 2003, ch. 875, § 1, subd. (b)(1).)
The MMP's safe harbor provision, subdivision (f) of section 11362.77, authorizes possession of certain amounts of medical marijuana. It provides that a "qualified patient or a person holding a valid identification card, or the designated primary caregiver of that qualified patient or person, may possess amounts of marijuana consistent with this article [that is, as provided in subds. (a)-(c) of § 11362.77]." By its terms, this safe harbor provision, which is not directly implicated on the facts of this case, would apply not only to those who hold MMP identification cards, but also to qualified patients or their primary caregivers - those persons who are entitled to the protections of the CUA but who do not obtain a program identification card that may provide protection against arrest.*fn10
As alluded to above and further explained below, subdivision (a) of section 11362.77, by its terms, does not confine its specific quantity limitations to those persons who voluntarily register with the program and obtain identification cards that protect them against arrest. It also restricts individuals who are entitled, under the CUA, to possess or cultivate any quantity of marijuana reasonably necessary for their current medical needs, thereby burdening a defense that might otherwise be advanced by persons protected by the CUA. Moreover, although subdivision (b) of section 11362.77 allows possession of a quantity "consistent with the patient's needs" that is greater than the amount set out in subdivision (a), it affords this protection only if a physician so recommends - a qualification not found in the CUA.
Defendant Patrick Kevin Kelly has long suffered from, among other ailments, hepatitis C, back problems (including ruptured disks), a fused neck, nausea, fatigue, cirrhosis, loss of appetite, and depression. Over the course of 10 years, defendant attempted to treat the pain caused by these conditions with multiple epidurals, pain therapy, nerve simulators, and various medications - some of which were very costly, exceeding his monthly income. Dissatisfied with this treatment plan, defendant decided to seek a recommendation to use marijuana as permitted by the CUA.
In mid-February 2005, Dr. Eve Elting, a medical doctor employed by Medicann, a physician-owned entity that evaluates patients who wish to use marijuana for medical purposes, met with defendant. Dr. Elting reviewed defendant's medical records and a 15-page form that defendant had been asked to complete, spoke with him, and then gave him a written recommendation for marijuana use that expired in one year. Dr. Elting did not recommend a dosage,*fn11 and defendant apparently did not register under the MMP.
Because defendant was unable to afford marijuana from a dispensary, he began to grow it at home for his personal use. Defendant consumes approximately one to two ounces of marijuana each week by smoking it, using it in a vaporizer, and consuming it in brownies. He testified that the marijuana lessens his nausea, but that its effectiveness has decreased over time.
In October 2005, a confidential informant told a law enforcement officer that he or she suspected defendant of growing marijuana. Los Angeles County Deputy Sheriff Michael Bartman went to the informant's home in the City of Lakewood, from which the deputy could observe marijuana plants growing in defendant's backyard. Law enforcement officers obtained a warrant, and thereafter Deputy Bartman, along with seven to nine other officers, arrested defendant and searched his home. They found seven potted marijuana plants and additional marijuana plants growing in the soil outside the garage in the backyard of defendant's home. They also discovered seven plastic bags, most of which were vacuum sealed, each containing one to two ounces of dried marijuana, along with a small amount of marijuana in a jar. In total, deputies seized slightly more than 12 usable ounces of dried marijuana. Deputies also recovered a scale and a loaded firearm from a nightstand in the master bedroom. No other traditional indicia of sales - such as pagers, cell phones, "pay-owe sheets," cash money in bills, "nickel and dime bags" (bags used to hold small amounts of marijuana, to be sold for $5 or $10), safes, or sophisticated growing systems - were found during the search. Nor was there any record of complaints by neighbors specifically concerning excessive foot traffic at defendant's home.
Dr. Elting's original written recommendation for medical use of marijuana was found in the master bedroom, and a copy was found taped to a wall of the garage. A deputy called the phone number on the recommendation and was told that defendant had a "prescription" to use marijuana. Defendant was arrested and charged with possessing marijuana for sale (§ 11359) and cultivating marijuana (§ 11358).*fn12
Prior to trial, defendant moved to bar the prosecution from eliciting testimony concerning the quantity limitations set out in section 11362.77, on the ground that the statute, in that regard, constitutes an impermissible amendment of the CUA. After an extensive hearing the trial court denied the motion. The court explained that it would instruct the jury pursuant to CALCRIM No. 2370, which, as the court observed, "doesn't mention [specific] amounts," and provides instead that the amount possessed or cultivated must be reasonably related to the patient's current medical needs. Nevertheless, the trial court ruled that the prosecutor would be permitted to question witnesses concerning section 11362.77 and also argue to the jury, consistently with this statute, that defendant possessed more than eight ounces of dried marijuana and yet lacked a physician's recommendation for possessing more than that amount. In that regard, the trial court ruled: "I think the Legislature has a right to - I don't really [think] it changed the [CUA]. I think it further defined it. So, that's my ruling."*fn13
At the subsequent jury trial, Deputy Bartman testified that, in his opinion, the marijuana recovered from defendant's home was possessed for sale. Bartman explained that he reached this conclusion despite the circumstance that most of the dried marijuana found at defendant's home was vacuum packed in relatively large quantities of approximately one to two ounces, instead of the one-ounce and much smaller nickel and dime bags typically used in sales. The deputy surmised that defendant had packaged the marijuana in larger quantities in order to supply other sellers, who in turn would repackage smaller amounts of the product into smaller containers. On earlier cross-examination, however, it was revealed that Deputy Bartman had minimal experience concerning marijuana used for medicinal purposes.
Defendant testified concerning his medical ailments and treatment efforts. He also explained that he used the scale that was found in his bedroom to ensure that he never took more than one ounce of marijuana with him when he traveled, because, although he knew he was permitted to possess medical marijuana, he did not "know what the law is on carrying it," and he also understood that as a general matter "over an ounce is a felony."
Christopher Conrad testified as a medical marijuana expert for the defense. Conrad explained that storing marijuana in vacuum-packed baggies is consistent with medicinal use, and that the total amount found (slightly more than 12 ounces of "dried mature processed flowers") also was consistent with personal use. Conrad observed that, assuming defendant consumed the marijuana found in his home at a rate of two ounces a week, the supply would last him slightly more than six weeks.*fn14 Dr. Elting testified concerning her recommendation that defendant use marijuana to treat his ailments.
On cross-examination of both Conrad and Dr. Elting, the prosecutor, consistently with the trial court's rulings, emphasized that section 11362.77 provides that a person may possess no more than eight ounces of dried marijuana unless the person has a medical recommendation to exceed that amount, and he elicited the agreement of these witnesses with his reading of the statute. This in turn prompted the trial court to instruct the jury spontaneously, near the conclusion of the cross- examination of Conrad: "[J]ust so the jury knows, because they're the ones that have to decide this case. This statute, basically, says you can have eight ounces of dried marijuana. But it also says later on that if... a city or a county says you could have more, then they could pass some law that says you can have more. That's basically what it says." Immediately thereafter, the prosecutor elicited testimony from Conrad establishing that, as far as the witness knew, the County of Los Angeles had not passed any law to "expand the eight ounce limitation."
Subsequently, the jury was given an instruction modeled on CALCRIM No. 2370, which, consistently with the CUA, explained that defendant was permitted to possess or cultivate an amount of marijuana reasonably related to his current medical needs.*fn15 Notably, the jury was not instructed that, in the absence of a physician's recommendation that eight dried ounces was insufficient, defendant had a right to possess only that amount.
Thereafter, however - and again, consistently with the trial court's denial of defendant's motion to exclude evidence of statutory quantity limitations, and with the court's spontaneous comment to the jury during the cross-examination of Conrad - the prosecutor in argument to the jury repeatedly stressed that defendant lacked a physician's recommendation to possess more than eight ounces of dried marijuana. The opening three paragraphs of the prosecutor's summation were as follows:
"This is, ladies and gentlemen, the final leg of the trial. The law is pretty simple in this case. Whether or not you agree with the law, disagree with the law, it's irrelevant. You have to follow the law. [¶] The facts are that the defendant has [a] physician's statement that he can use marijuana for medical purposes. That's not in dispute, ladies and gentlemen.... But, what's also clear is that the law says he can only have eight ounces of dried [marijuana]. And testimony by the defense expert Mr. Conrad stated that the amount that was recovered... was about... 12 ounces. [¶] Well, guess what? Twelve ounces is... more than eight ounces of marijuana.... So what happens if the defendant has more than eight ounces of the dried marijuana stuff? Then, there has to be some evidence to show that the doctor recommended more than that. And there is no evidence, ladies and gentlemen. It's not disputed that there is no evidence presented to show that the defendant has any medical recommendation that exceeds the eight ounces." (Italics added.)
After further arguing that, in his view, the evidence demonstrated that defendant was both using marijuana and selling it, the prosecutor continued: "If, for example, you decide, well you know what? I don't think he intend[ed] to possess for sale. But, you know what? What he can possess is only eight ounces. Remember, ladies and gentlemen. So, the excess that he possess[ed], the other four ounces you can consider that in the possession charge...."
Thereafter, defense counsel's closing argument urged the jury to determine that defendant neither sold marijuana nor intended to do so, and that the amount possessed and cultivated by defendant was reasonable for his personal medical use and hence was protected by the CUA. In response, the prosecutor, in his final summation to the jury, argued that defense counsel was "asking you to be legislators" and "interpreters of the law," but "[t]hat's not your job here, ladies and gentlemen. Your job is to follow the law. And the law says, whether we agree with it or not, the law says very clearly in black and white, Health and Safety Code section 11362.77[, subdivision] (a), I'm going to read it to you right now. `A qualified patient' [-] we're not disputing that he's a qualified patient [-] `or primary caregiver may possess no more than eight ounces of dried marijuana per qualified patient. In addition, a qualified patient or primary caregiver may also maintain no more than six mature or 12 immature plants per qualified patient." The prosecutor also read to the jury section 11362.77, subdivision (b): " `If a qualified patient or primary caregiver has a doctor's recommendation that [t]his quantity does not meet the qualified patient's medical needs, the qualified patient or primary caregiver may possess an amount of marijuana consistent with the patient's needs.' "
The prosecutor asserted: "What does that mean? He can have eight ounces of the dried stuff. We know he has 12 at least, he can have eight ounces of the stuff or [sic: and] he can have six immature [sic: mature] plants. Evidence was that they found seven plants in this particular case. But you know what? We're not saying, no, you can't have what you need. That's not what the law says. The law says before you can have more than that you need a doctor's recommendation. He doesn't have a doctor's recommendation, ladies and gentleman." (Italics added.) The prosecutor continued in this vein, and then concluded: "Bottom line.... The law, it is what it is and we all have to follow it. [¶] You're not to guess at why the ...