Defendant and appellant Jovan Christian Jackson was
charged with the sale of marijuana and possession of marijuana for sale. Prior to his trial the People filed a motion
under Evidence Code section 402 for an order preventing him from offering
evidence he was entitled to the defense provided by the Medical Marijuana
Program Act (MMPA), Health & Safety Code[1]
section 11362.7 et seq. to patients who associate for the purpose of
collectively cultivating medical marijuana.
At the hearing on the People's motion, Jackson testified
he, and approximately five other individuals, were actively engaged in
cultivating marijuana and providing it to themselves and the approximately
1,600 other members of their medical marijuana collective. Jackson testified each member of the
collective was required to show proof marijuana had been prescribed to the
member by a medical professional for treatment of a medical condition. Jackson further testified the collective did
not generate any profits for either himself or the other active
participants. Jackson offered no
testimony with respect to how the collective was governed.
The trial court found Jackson presented sufficient
evidence the collective's members were qualified patients within the meaning of
the MMPA and the collective was not operated on a for profit basis. However, the trial court found that in light
of the large number of members of the collective, Jackson could not establish
the collective was operated for the purpose of collectively cultivating
marijuana within the meaning of the MMPA as opposed to simply distributing
marijuana. Thus, the trial court granted
the People's motion and prevented Jackson from offering any defense under the
MMPA. Jackson was convicted and the
trial court imposed three years of formal probation.
We reverse Jackson's conviction. In opposing the People's motion, Jackson's
burden was not very great. Jackson was
only required to produce evidence which would create a reasonable doubt as to
whether the defense provided by the MMPA had been established. The defense the MMPA provides to patients who
participate in collectively or cooperatively cultivating marijuana requires
that a defendant show that members of the collective or cooperative: (1) are qualified patients who have been
prescribed marijuana for medicinal purposes, (2) collectively associate to
cultivate marijuana, and (3) are not engaged in a profit-making
enterprise. As we interpret the MMPA,
the collective or cooperative association required by the act need not include
active participation by all members in the cultivation process but may be
limited to financial support by way of marijuana purchases from the
organization. Thus, contrary to the
trial court's ruling, the large membership of Jackson's collective, very few of
whom participated in the actual cultivation process, did not, as a matter of law,
prevent Jackson from presenting an MMPA defense.
However, we also recognize that in determining whether a
MMPA defense has been established, a trier of fact must consider whether the
organization operates as a for profit enterprise or is a nonprofit enterprise
operated for the benefit of its members.
In resolving that question, an organization's large membership and
governance processes, if any, are relevant.
As we explain, where, as here, a collective has a large
membership, the overwhelming number of whom do not, in any fashion, participate
in the operation or governance of the collective and there is evidence of a
high volume of purchases by the members, a trier of fact could reasonably
conclude that, notwithstanding Jackson's testimony to the contrary, the
organization is a profit-making enterprise which distributes marijuana to
customers rather than to members of a nonprofit collective organization and is
therefore outside the scope of the defense offered by the MMPA. Thus, on remand, the jury should be
instructed that in determining whether Jackson is entitled to a defense, the
jury must determine whether the collective he participates in is a
profit-making enterprise and further that in resolving that question, it should
consider, in addition to other evidence of profit or loss, the size of the
collective's membership, the volume of purchases from the collective and the
members' participation in the operation and governance of the collective.
FACTUAL AND PROCEDURAL BACKGROUND
Jackson has
been prosecuted twice with respect to his operation of a medical marijuana
dispensary operating under the name Answerdam Alternative Care
(Answerdam). In 2009 Jackson was
acquitted of five counts related to the possession and sale of marijuana. At Jackson's first trial, the jury was
instructed with respect to the defense for marijuana collectives and
cooperatives provided by the MMPA, in pertinent part, as follows: "A person is not guilty of the crimes
charged in Counts 1-5 if his actions are exempted under the Medical Marijuana
Program. The Medical Marijuana Program
provides that qualified patients [and their designated primary caregivers] may
associate within the State of California in order collectively or cooperatively
to cultivate marijuana for medical purposes.
"A qualified patient is someone for whom a
physician has previously recommended or approved the use of marijuana for
medical purposes.
[¶] . . . [¶]
"Collectively means involving united
action or cooperative effort of all members of a group.
"Cooperatively means working together or
using joint effort toward a common end.
"Cultivate means to foster the growth of
a plant.
"If
you have reasonable doubt about whether, at the time of the crimes charged in
Counts 1-5, the defendant was a qualified patient [or primary caregiver], and
that he committed the crimes solely because he was associating within the State
of California in order collectively or cooperatively to cultivate marijuana,
you must find the defendant not guilty."
Following
Jackson's first trial, the jury foreman explained the difficulty the jury faced
in determining whether Jackson was entitled to an MMPA defense: "[I]t was all contingent on the medical
marijuana defense and the lack of definition within the state law as far as
what constitutes a collective or a cooperative . . . . So, um, just for the lack of definition of
that state law was really the key.
[¶] . . . [¶]
Um, the prosecution gave his . . . kind of narrow
definition during the, the closing arguments, but there was nothing in the law
that really backed that up."
While the
initial charges against Jackson were still pending, law enforcement agencies
continued to investigate Jackson and Answerdam.
Following his acquittal at the first trial, Jackson was charged in a new
information with one count of the sale of marijuana (§ 11360, subd. (a))
and two counts of possession of marijuana for sale (§ 11359). Those allegations were based on activity
which occurred after the conduct which gave rise to the first trial.
As we
indicated at the outset, prior to trial on the second information, the People
moved under Evidence Code section 402 for an order preventing Jackson from
offering an MMPA defense. At the hearing
the People presented testimony from one of the investigators who testified that
he never observed any cultivation taking place at the Answerdam
dispensary. The People also offered
testimony from a member of the collective who testified that although he
purchased marijuana at the dispensary, he never saw it being grown there and he
never participated in its cultivation.
For his
part Jackson testified at the Evidence Code section 402 hearing that marijuana
for Answerdam was grown at another location, that he and four or five other
members of the collective took part directly in cultivating the marijuana and
that each member of the collective was required to produce a physician's
recommendation that they use marijuana to treat a diagnosed illness or
condition. According to Jackson, at one
time or another approximately 1,676 qualified patients had joined Answerdam by
way of paying a membership fee and signing a membership form. Jackson further testified that Answerdam was
not a profit-making business and that he and others were paid only for the
expenses they incurred in cultivating marijuana and operating the dispensary. Jackson conceded that there were no meetings
of the Answerdam membership and no attempts to contact them with respect to
operation of the collective.
In
considering the People's motion, the trial court found there was not enough
information to determine whether Answerdam was operated as a for profit
enterprise and therefore the trial court would not rely on that factor in
ruling on the People's motion. In
nonetheless granting the motion and excluding evidence of the defense, the
trial court stated: "So assuming
there was cultivation going on and that at least some members were involved,
that still leaves us with the evidence that was presented that there were well
over 1,000 people involved in this so-called collective or cooperative, and a
very, very small percentage of those─a miniscule percentage was involved in the
act of cultivation.
"That
certainly does not in any way establish that the association was for the
purpose of cultivation. It only
establishes that some of the people may have been cultivating. That's very different. Obviously, as I pointed out, all marijuana is
cultivated. If everyone who distributed
marijuana was a cultivator, then there would be no need for the defense.
"It's
clear that, as I said, the statute says that the association has to be for the
purpose of cultivating marijuana. There
is no evidence in the record that that was the purpose of this
association. Indeed, the evidence points
to quite the contrary, that the purpose of the association was for the
distribution of marijuana that was cultivated by others whether or not members.
"And in my mind, there's no plausible basis on which
this defense could go to the jury. It
could not possibly raise a reasonable doubt using the language of [section]
11362.75."
In light of the trial court's ruling on the People's
motion, at the second trial no evidence with respect to the MMPA defense was
offered and no instruction on the issue was given. Jackson was, as we indicated, convicted on
all three counts and given three years of formal probation.
DISCUSSION
I
We begin our consideration of Jackson's contention the
trial court erred in granting the People's motion by noting the modest burden
Jackson bore in opposing the People's motion.
When the closely related defenses to marijuana possession offenses offered
by the Compassionate Use Act (CUA) (§ 11362.5 et seq.) are at issue, the
cases have uniformly held that the defendant need only raise a reasonable doubt
as to whether the elements of the defense have been established. (See e.g., People v.
Jones (2003) 112 Cal.App.4th 341, 350; see also People v.
Mower (2002) 28 Cal.4th 457, 476-482.) The defendant's limited burden is based on
the conclusion that CUA defenses turn on the nature of the defendant's conduct
rather than a collateral matter, such as when an entrapment defense is
offered. (People v.
Mower, supra, 28 Cal.4th
at pp. 476-482.) Because the defenses
provided by the MMPA, like those set forth in the CUA, relate directly to the
nature of the defendant's conduct as opposed to collateral matters, those
defenses only require that a defendant raise a reasonable doubt as to whether
the elements of the defenses have been proven.
In determining whether that minimal burden has been met, "the trial
court must leave issues of witness credibility to the jury." (People v. Villanueva (2008)
169 Cal.App.4th 41, 49.)
II
The court in People v. Colvin (2012) 203
Cal.App.4th 1029 (Colvin) recently discussed
the defenses offered by the MMPA at some length in a context very similar to
the circumstances set forth in the record here.
As the court in Colvin recognized, the
defenses provided by the MMPA grow out of adoption by the people of Proposition
215: "In 1996, voters passed Proposition 215,
the Compassionate Use Act of 1996 (CUA; § 11362.5). One purpose of the CUA was to 'ensure that
seriously ill Californians have the right to obtain and use marijuana for
medical purposes where that medical use is deemed appropriate and has been
recommended by a physician who has determined that the person's health would benefit
from the use of marijuana in the treatment' of illnesses for which marijuana
provides relief. [Citations.] A second purpose was to ensure that patients
and their primary caregivers who obtain and use medical marijuana are not
subject to criminal prosecution or sanction.
[Citation.] The CUA therefore
provided that 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 a doctor's
recommendation. [Citation.] The CUA thus provided a limited immunity from
prosecution, including a defense at trial.
[Citation.]
"In
response to the CUA's encouragement 'to implement a plan to provide for the
safe and affordable distribution of marijuana to all patients' in need of it
[citation], our Legislature enacted the MMPA (§ 11362.7 et seq.). Through the MMPA, the Legislature sought to
'(1) [c]larify the scope of the application of the act 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. [¶] (2) Promote uniform and consistent
application of the act among the counties within the state. [¶] (3) Enhance the access of patients and
caregivers to medical marijuana through collective, cooperative cultivation
projects.' [Citation.] To these ends, section 11362.775 of the MMPA
provides, '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.' [Citation.]" (Colvin, supra, 203 Cal.App.4th at pp. 1034-1035.)
In
Colvin
the defendant was the operator of two marijuana dispensaries which together had
5,000 members. Based on his
transportation of marijuana from one dispensary to the other, the defendant was
charged with the sale or transportation of marijuana as well as with the
possession of concentrated cannabis.
The defendant in Colvin waived a jury trial
and at the close of the prosecution case moved for acquittal, asserting the
defense provided by section 11362.775.
The trial court found the defendant was a bona fide patient and that the
dispensaries he operated were legitimate and complied with the MMPA. Nonetheless, the trial court found
transportation from one dispensary to another had nothing to do with
cultivation and thus the trial court concluded a section 11362.775 defense was
not available. The trial court then
found the defendant guilty of both marijuana offenses. The Court of Appeal reversed and found that
the defense applied.
In rejecting the trial court's reasoning, the court in Colvin stated: "It is unclear what the trial court
meant when it said that Colvin's transportation of marijuana was unrelated to
the cultivation process and was outside what section 11362.775 allows. There was no evidence that Colvin's
transportation of one pound of marijuana was for anything other than [his
Holistic dispensaries]. To the extent
the trial court ruled as it did because it believed that only cooperative or
collective cultivators of marijuana
can transport the product, Colvin/Holistic is a cultivator: Holistic has three on-site 'grow rooms,'
which the LAPD visited. Fourteen members
of Holistic also grow marijuana for Holistic offsite. All of the marijuana Holistic distributes is
from a cooperative member; none of it is acquired from an outside source. Thus, even under a reading of section
11362.775 limiting transportation of marijuana only to cooperatives that
cultivate it, then Colvin was entitled to the immunity." (Colvin, supra, 203 Cal.App.4th
at p. 1037.)
As an alternative to the trial court's reasoning, the
Attorney General argued, as she does here, "that section 11362.775 does
not condone 'a large-scale, wholesale-retail marijuana network' like Holistic,
which has approximately 5,000 members.
The Attorney General argues that a collective or cooperative cultivation
'must entail some united action or participation among all those involved, as
distinct from merely a supplier-consumer relationship.' There must be, the Attorney General suggests,
'some modicum of collaboration' in which qualified patients and caregivers '
"come together" ' in 'some way.' " (Colvin, supra, 203
Cal.App.4th at p. 1037.)
The court in Colvin
squarely rejected the Attorney General's argument: "The evidence here was Holistic obtained
its business licenses, was a nonprofit corporation, and was in the process of
complying with then-applicable ordinances.
The trial court thus found that Holistic was a 'legitimate' dispensary,
which implies that the court believed Holistic was complying with the
appropriate laws.
"The Attorney General does not argue otherwise,
instead maintaining that a medical marijuana cooperative seeking the
protections of section 11362.775 must establish that some number of its members
participate in the process in some way.
The Attorney General does not specify how many members must participate or in what way or ways they must do so, except to imply that Holistic,
with its 5,000 members and 14 growers, is simply too big to allow any 'meaningful'
participation in the cooperative process; hence, it cannot be a 'cooperative'
or a 'collective' in the way section 11362.775 intended. But this interpretation of section 11362.775
would impose on medical marijuana cooperatives requirements not imposed on
other cooperatives. A grocery
cooperative, for example, may have members who grow and sell the food and run a
store out of which the cooperative's products are sold. But not everyone who pays a fee to become a
member participates in the cooperative other than to shop at it." (Colvin, supra, 203
Cal.App.4th at pp. 1038-1039.)
In finding the defendant had established the defense, the
court in Colvin
also noted that in important respects the defendant and his dispensary had
complied with guidelines[2] promulgated
by the Attorney General: "Holistic,
for example, is a nonprofit registered with the City of Los Angeles in 2007,
and Colvin took steps to comply with applicable ordinances (Guidelines, §
IV.A.1,2, B.1,2, pp. 8, 9 [advising cooperatives to incorporate under the Corp.
Code or Food & Agr. Code and to obtain applicable business licenses and
permits]); Holistic requires members to fill out membership forms, assigns each
member a number to track prescription expiration, and keeps a record of members'
medical problems and each time a member returns (id., § IV.B.3, p. 9 [potential members should complete a
written membership application, their status should be verified, membership
records should be maintained, and expiration of prescriptions should be tracked]);
all money Holistic receives from members goes back into the cooperative (id., § IV.B.5, p. 10 ['[a]ny
monetary reimbursement that members provide to the collective or cooperative
should only be an amount necessary to cover overhead costs and operating
expenses']); Holistic bases membership fees on the cost to cover the member's
needs (id., § IV.B.6, p. 10
[marijuana may be allocated based on fees that are reasonably calculated to
cover overhead costs and operating expenses]); Colvin was transporting only one
pound of marijuana (id.,
§ IV.B.7, p. 10 ['collectives and cooperatives may cultivate and transport
marijuana in aggregate amounts tied to its membership numbers']); and Holistic
employs security measures, namely, it keeps new applicants in a 'primary
holding' area and verifies their information before admitting them and has no
more than two to three pounds of marijuana on the premises at any given time (id., § IV.B.8, p. 11 [collectives
and cooperatives should take security measures to protect patients and
surrounding neighborhoods]). Thus, to the extent these guidelines have any
weight, they contemplate cooperatives like Holistic." (Colvin, supra, 203
Cal.App.4th at pp. 1040-1041.)
The court in Colvin also relied on the
holding in People
v. Urziceanu (2005) 132 Cal.App.4th 747, 785 (Urziceanu). In Urziceanu the court found
that a defendant was entitled to an instruction on the MMPA defense
notwithstanding the fact that his marijuana collective had several hundred
members. In doing so the court stated
section 11362.775 represents "a dramatic change in the prohibitions on the
use, distribution, and cultivation of marijuana for persons who are qualified
patients or primary caregivers . . . . 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." (Urziceanu,
supra, 132 Cal.App.4th at p. 785.)
The Attorney General asks that we reject the relatively
broad interpretation of the MMPA adopted by the courts in Colvin
and Urziceanu.
However, as was the case in Colvin, the Attorney General
is unable to point to any portion of the MMPA itself which suggests the
Legislature intended to put any numerical limits on the size of a collective or
cooperative. As the court in Colvin
recognized, there
is nothing in the MMPA which suggests where such a numerical limit should be
placed and in any event a numerical limit would be somewhat at odds with one of
the express purposes of the MMPA, to wit:
enhancing access to medical marijuana.
(Stats. 2003, ch. 875, § 1, subd. (b), pp. 6422-6423.)
The only authority the Attorney General offers, People ex rel. Trutanich v. Joseph
(2012) 204 Cal.App.4th 1512, 1523, does not consider the express terms of the
MMPA, but simply makes the conclusory statement that section 11362.775
"does not cover dispensing or selling marijuana." That statement is of course inconsistent with
the Attorney General's own guidelines, which appear to contemplate that
collectives and cooperatives will dispense marijuana and that there will be an
exchange of cash consideration. (See
Guidelines, supra, § IV.B.5, p.
10.) It is also inconsistent with the
Legislature's recent addition of section 11362.768 to the MMPA. Section 11362.768 provides that "a
medical marijuana cooperative, collective, dispensary,
operator, establishment, or provider that is authorized by law to possess,
cultivate, or distribute medical marijuana and that has a storefront or mobile
retail outlet which ordinarily requires a local business license" may not
be located within a 600-foot radius of a school. (§ 11362.768, subd. (e), italics
added.) In enacting this limitation, the
Legislature seemed to express its understanding that contrary to the court's
statement in People ex rel.
Trutanich v. Joseph, the MMPA permits retail dispensaries.
The Attorney General's Guidelines and the adoption of
section 11362.768 also foreclose adoption of the even narrower interpretation
offered by the district attorney in her amicus brief. The district attorney argues that all members
of a collective or cooperative must actively participate in cultivation of
marijuana to bring the organization within the terms of section 11362.76. Such a strict limitation on the means by
which authorized collectives and cooperatives provide medical marijuana to
their members is entirely inconsistent with the conduct permitted under the
Attorney General's Guidelines and expressly contemplated in the Legislature's
most recent amendments to the MMPA.
III
Given the limited burden placed on Jackson at the
Evidence Code section 402 hearing and the holding in Colvin,
with which we agree, we must conclude the trial court erred in granting the
People's motion. In this regard we place
particular emphasis on the trial court's express unwillingness to determine
whether Answerdam was operated for a profit.
Assuming then, as did the trial court, that Answerdam was not operated
for profit, and accepting Jackson's testimony that all members were qualified
medical marijuana patients, the fact Answerdam has a large membership did not
prevent Jackson from offering a defense under section 11362.775. Jackson presented enough evidence to raise a
reasonable doubt as to whether Answerdam was a collective or cooperative
project within the meaning of section 11362.775.
In light of Jackson's acquittal in the first trial at
which an MMPA defense instruction was given, there can be no serious dispute
that the failure to permit him to offer such a defense at the second trial was
prejudicial and that we must therefore reverse Jackson's conviction.
IV
Because an MMPA defense will no doubt arise in any
further proceedings in this case, as well as others, and because the parameters
of the MMPA defense have not been set forth in a definitive manner, we are
obliged to consider the limits of the defense and provide the trial court and
the parties principles which will govern jury instructions on remand.
While we agree with the holding in Colvin that the relatively large size of a collective or
cooperative will not per se take it
outside the scope of section 11362.775, in any given case the size of an
enterprise may nonetheless be quite relevant in determining whether a
defendant's participation is protected by the MMPA. In this regard we note that although section
11362.775 itself does itself require that collective or cooperative projects be
nonprofit enterprises, there is little doubt the Legislature did not intend to authorize profit-making
enterprises. The clearest expression of
that limitation is set forth in the basic immunity provided to individual
patients and their care providers by the closely related provisions of section
11362.765, subdivision (a):
"However, nothing in this section shall authorize the individual to
smoke or otherwise consume marijuana unless otherwise authorized by this
article, nor shall anything in this section authorize any individual or group to cultivate or distribute
marijuana for profit." (Italics
added.) The nonprofit limitation on
group cultivation in section 11362.765, subdivision (a) would make little, if
any, sense, if it did not also apply to collective or cooperative projects
permitted under section 11362.775. (See Bode v. Los Angeles Metropolitan Medical
Center (2009) 174 Cal.App.4th 1224, 1237 ["[P]rovisions relating to
the same subject matter or that are part of the same statutory scheme must be
read together and harmonized to the extent possible."]; see also Qualified Patients Assn. v. City of Anaheim
(2010) 187 Cal.App.4th 734, 747 [collective and cooperatives under section
11362.775 must be nonprofit]; Hochanadel,
supra, 176 Cal.App.4th at p. 1018 [same]; Guidelines, p. 9 [same].) Thus, when a defense under the MMPA is
offered, the People are entitled to an instruction advising the jury that a
collective or cooperative protected by the MMPA must be a nonprofit enterprise.
Plainly, in determining whether a collective or
cooperative is a nonprofit enterprise, its establishment as such under
Corporations Code 12201[3]
and any financial records of the enterprise will be relevant, including in
particular any processes or procedures by which the enterprise makes itself
accountable to its membership. An
operator's testimony as to the nonprofit nature of the enterprise is of course
also relevant.
However, by the same token the absence of fairly complete
financial records and any accountability to members will also be relevant,
especially when combined with a large number of members and evidence of a high
volume of business. In the latter
circumstance a trier of fact could reasonably conclude that, notwithstanding an
operator's testimony, a large membership, high volume enterprise was in fact
operated for profit. Thus, in addition
to an instruction that an enterprise must be nonprofit, the People are entitled
to an instruction that in considering whether a collective or cooperative is
nonprofit, a jury may consider the testimony of the operators of the
enterprise, its formal establishment as a nonprofit organization, the presence
or absence of any financial records, the presence or absence of processes by
which the enterprise is accountable to its members, the size of the
enterprise's membership and the volume of business it conducts.
Of course the jury should also be instructed that a
defendant is only required to raise a reasonable doubt as to whether the
elements of the defense, including the nonprofit element, have been
proven. (See People v. Jones, supra, 112 Cal.App.4th at p. 350.)[4]
[1] All further statutory references are to the Health and
Safety Code unless otherwise indicated.
[2] California Attorney General's Guidelines for the Security
and Non-Diversion of Marijuana Grown for Medical Use (Aug. 2008) [http:// ag.
ca. gov/ cms_ attachments/ press/ pdfs/ n 1601_ medical marijuana guidelines.
pdf], as of February 23, 2012, (Guidelines).
The Guidelines are entitled to considerable weight but do not bind
us. (People v. Hochanadel (2009)
176 Cal.App.4th 997, 1011 (Hochanadel).)
[3] Corporations Code section 12201 permits establishment of
consumer cooperatives which are "democratically controlled and are not
organized to make a profit for themselves, as such, or for their members, as
such, but primarily for their members as patrons (Section 12243)."
[4] We deny Jackson's request for judicial notice of a recent
letter the Attorney General sent to the Legislature. The letter was not presented in the trial
court. (See Haworth v. Superior Court (2010) 50 Cal.4th 372, 379, fn. 2.)
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