In People v. Roger William Mentch, (— Cal.Rptr.3d —, Cal., Nov. 24, 2008), the California Supreme Court considered the convictions for cultivation and possession of marijuana for sale of a person who used medical marijuana himself and sold marijuana to qualified medical marijuana patients, but otherwise cared only sporadically for them. The court found that under the Compassionate Use Act of 1996 (“Act”), which provided immunity for qualified medical marijuana patients and their primary caregivers, the marijuana seller was not a “primary caregiver” because he had not provided regular care to the patients before selling them marijuana, and only sporadically provided other types of care while he was providing the marijuana.
Facts
Roger Mentch operated a business in which he consulted with qualified medical marijuana patients and then sold them marijuana. In 2003, he was arrested and charged with cultivation of marijuana and its possession for sale.
At his trial, Mentch testified he was a qualified patient who smoked marijuana to alleviate a variety of medical conditions. He also testified he was a primary caregiver to his customers because he consistently provided them with medical marijuana when needed for their medical conditions. During the discussion of jury instructions, Mentch requested that the court instruct the jury that he was both a qualified medical marijuana patient and a primary caregiver. The court instructed the jury only that he was a qualified patient, but not that he was a primary caregiver. The jury convicted Mentch of cultivation and possession of marijuana for sale.
Mentch appealed and the Court of Appeal reversed his convictions ruling the trial court erred when it failed to instruct the jury that Mentch was a primary caregiver. The California Supreme Court reviewed the reversal to more specifically address the meaning of “primary caregiver” under the Act.
Decision
The definition of “primary caregiver” under the Act has two parts: first, the primary caregiver must have been designated as such by the patient; and second, he or she must be a person “who has consistently assumed responsibility for the housing, health, or safety of” the patient. The court reasoned that the second prong must be more restrictive than the first, or else it would be meaningless. Therefore, a primary caregiver must meet both parts of the definition.
The word “consistently” in the second part of the definition suggests an ongoing relationship marked by regular and repeated actions over time, the court said. Furthermore, the definition uses a past tense “has consistently assumed,” which suggests the Act intends a prior established relationship of caregiving before permitting the providing of marijuana as a part of caregiving, the court added.
The evidence showed that Mentch had no consistent prior relationships of caregiving before he began providing marijuana to his patients, the court said, adding that at best, his caregiving before and during the time he sold marijuana to his patients was “only sporadic,” such as occasional consultations and driving them to medical appointments. Therefore, no reasonable doubt existed about Mentch not qualifying as a “primary caregiver” under the Act. The trial court was correct to decline to give a jury instruction to the contrary and the Court of Appeal erred in reversing Mentch’s conviction.
The Court of Appeal’s judgment was reversed and Mentch’s convictions reinstated.
Questions
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