In The People v. Archer, (— Cal.Rptr.3d —-, Cal.App. 4 Dist., November 17, 2009), a California Court of Appeal considered whether a trial court erred when it instructed a jury that there was a numerical limit on the amount of marijuana that a qualified patient could lawfully possess and cultivate. The Court of Appeal held the trial court erred in instructing the jury that there was a numerical limit on the amount of marijuana the patient could possess and cultivate but the error was harmless as to the cultivation charge because the defendant cultivated marijuana for individuals for whom the defendant was not a primary caregiver.
Facts
When the police searched the home of Nathaniel Archer (“Archer”) they found 98 marijuana plants growing in Archer’s bedroom, 1.72 pounds of dried marijuana in jars, and numerous items used to grow marijuana. Archer was charged with cultivation and possession of marijuana. Archer has a doctor’s recommendation for the use of medical marijuana. He also claims that he is the primary caregiver of two other qualified patients, as that term is defined in the Health and Safety Code.
At trial, Rodolfo Reyes (“Reyes”) testified he was referred to Archer for his knowledge of growing marijuana plants correctly. Reyes designated Archer as his primary caregiver, but he never received any marijuana from Archer. Scott Olson (“Olson”) testified he was told by someone at a medical marijuana dispensary that Archer might be able to help him grow marijuana. Olson designated Archer as his primary caregiver and received some small cuttings from Archer to start his own garden.
Archer started a marijuana garden in 2004 after he obtained a doctor’s recommendation to use medical marijuana. At the time the police found the marijuana in Archer’s home, he was growing marijuana for Reyes, Olson, himself, and two other individuals whom he did not identify. Archer stated he was using approximately one-half pound of marijuana for his own use each month.
The trial court instructed the jury that, consistent with the Medical Marijuana Program Act (“MMPA”), a qualified patient or primary caregiver may possess no more than eight ounces of dried marijuana per qualified patient and no more than six mature or 12 immature plants per qualified patient. The jury found Archer guilty of cultivation of marijuana in violation of Health and Safety Code section 11358 and simple possession of marijuana in violation of section 11357, subdivision (a).
Decision
The California Legislature passed the MMPA in 2003. In passing the MMPA, the Legislature sought to clarify the scope of the Compassionate Use Act (“CUA”), which was passed by California voters in 1996. The MMPA provides that a qualified patient or 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, is not subject to criminal violations. The CUA sets no limits on the amount of marijuana a qualified patient or primary caregiver can lawfully possess or cultivate. The CUA’s only qualification in regard to the amount of marijuana that may be cultivated or possessed is that the marijuana must be for the “personal medical purposes” of the patient. The MMPA, however, provides that a qualified patient or caregiver may only possess no more than eight ounces of dried marijuana per patient and may maintain no more than six mature or 12 immature marijuana plants per patient.
The California Constitution prevents the Legislature from amending an initiative measure unless the authority to amend is contained in the initiative. “The CUA does not authorize legislative amendment without voter approval.” The prosecution and Archer both contended the MMPA’s numerical limits unconstitutionally amend the CUA. The prosecution, however, argued that the trial court’s instruction in regard to the numerical limits was harmless error. The Court of Appeal held, assuming arguendo, that the numerical limits set out in the MMPA are unconstitutional, the trial court’s instructional error as to the cultivation conviction was harmless error, but the instructional error as to the possession conviction was not harmless error.
Archer claimed he cultivated marijuana for at least five people, including himself. Archer only identified two of the other individuals and claimed he was their primary caregiver. Archer provided no services to Reyes and Olson that did not involve marijuana. The growth and cultivation of marijuana, however, “by itself is not sufficient to establish the primary caregiver defense.” Even if he did qualify as a primary caregiver for Reyes and Olson, Archer did not establish he was a primary caregiver for the other two individuals. The fact that Archer was a qualified patient who grew marijuana for himself is not sufficient to provide him with a full defense to the cultivation charge because he was growing marijuana for others who were not covered by the CUA. The Court of Appeal held that the trial court’s inclusion of the numerical limit for the cultivation charge was harmless error.
The Court of Appeal, however, reached a different conclusion as to the possession conviction. The CUA has been interpreted as providing that the quantity of marijuana a patient or primary caregiver may possess “should be reasonably related to the patient’s current medical needs.” A determination of a patient’s current medical needs must be left to the trier of fact, which in Archer’s case was the jury. Archer claimed he was using about one-half pound of marijuana per month. The 1.72 pounds of marijuana found by police would be about a three-month supply. It is a question of fact as to whether the amount of marijuana possessed by Archer was reasonably related to his medical needs. Therefore, the trial court’s instruction to the jury regarding the numerical limit of marijuana Archer could possess was prejudicial. Accordingly, the Court of Appeal reversed the conviction for possession.
Questions
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