The case People v Mentch is brought up a lot. With all the raging debate about sales, caregiving, etc., I thought I would extract pertinent parts of the Court's opinion. This opinion was by the California Supreme Court (highest court in California) and is current case law regarding these issues.
Anybody, feel free to add parts of the opinion in this thread that I have left out.
THE PEOPLE, Plaintiff and Respondent, v. ROGER WILLIAM MENTCH,
Defendant and Appellant.
S148204
SUPREME COURT OF CALIFORNIA
45 Cal. 4th 274; 195 P.3d 1061; 85 Cal. Rptr. 3d 480; 2008 Cal. LEXIS 13630
November 24, 2008, Filed
OPINION
WERDEGAR, J.--The Compassionate Use Act of
1996 (Act; Health & Saf. Code, § 11362.5, added by
voter initiative, Prop. 215, Gen. Elec. (Nov. 5, 1996))
provides partial immunity for the possession and
Page 1
cultivation of marijuana to two groups of people:
qualified medical marijuana patients and their primary
caregivers. We consider here who may qualify as a
primary caregiver. We hold that a defendant whose
caregiving consisted principally of supplying marijuana
and instructing on its use, and who otherwise only
sporadically took some patients to medical appointments,
cannot qualify as a primary caregiver under the Act and
was not entitled to an instruction on the primary caregiver
affirmative defense. We further conclude that nothing in
the Legislature's subsequent 2003 Medical Marijuana
Program (Health & Saf. Code, § 11362.7 et seq.) alters
this conclusion or offers any additional defense on this
record. Accordingly, we reverse the Court of Appeal.
FACTUAL AND PROCEDURAL BACKGROUND
In 2003, Roger William Mentch was arrested and
charged with the cultivation of marijuana (Health & Saf.
Code, § 11358) 1 and its possession for sale (§ 11359). 2
1 All further unlabeled statutory references are
to the Health and Safety Code.
2 Mentch was also charged with manufacturing
and possessing concentrated cannabis (also
known as hash oil) (§§ 11357, subd. (a), 11379.6,
subd. (a)), possessing psilocybin mushrooms (§
11377, subd. (a)), and firearm enhancements for
the marijuana and hash oil counts (Pen. Code, §
12022, subd. (a)(1)), but these additional counts
have no bearing on the issues in this appeal, and
we do not address them further.
Prosecution Evidence
Heidi Roth, a teller at Monterey Bay Bank, testified
that she became familiar with Mentch over the period of
February to April 2003. Mentch came to the bank on
several occasions and made large deposits of cash in
small bills, each deposit totaling over $ 2,000. Roth
noticed that some of the money Mentch deposited
smelled so strongly of marijuana that the smell filled the
bank, and the bank had to remove the money from
circulation. The total amount Mentch deposited with the
bank over a two-month period was $ 10,750. On April
15, 2003, Roth filed a suspicious activity report with the
Santa Cruz County Sheriff's Office, relating the
questionable nature of Mentch's deposits.
After further investigation, the sheriff's office
obtained a warrant to search Mentch's house for
marijuana. On June 6, 2003, Mark Yanez, a narcotics
investigator, and four deputies went to Mentch's house to
serve the warrant. When Mentch opened the door, Yanez
told him they had a warrant to search his house for
marijuana. Mentch told Yanez that he had a medical
recommendation for marijuana. A search of Mentch's
person turned up $ 253 in cash and a small vial of hash
oil, or concentrated cannabis. Yanez advised Mentch of
his rights and interviewed him in a police vehicle parked
outside Mentch's residence.
Mentch told Yanez he had a medical marijuana
recommendation for colitis, dysphoria, and depression,
and that he smoked about four marijuana cigarettes,
totaling approximately one-sixteenth of an ounce, per day
for medicinal purposes. When Yanez asked Mentch if he
sold marijuana, Mentch responded that he sold it to five
medical marijuana users.
A search of Mentch's residence revealed several
elaborate marijuana growing setups. In various rooms of
the house, the deputies found 82 marijuana plants in the
flowering or budding stage, 57 "clone" marijuana plants,
48 marijuana plants in the growing or vegetative stage,
and three "mother" plants, which Yanez opined were
likely the female plants from which clippings were taken
to make the clone plants. Considering the evidence seized
from Mentch's bank and residence, as well as his
statement to Yanez, Yanez opined that while Mentch may
have personally consumed some of the marijuana he
grew, his operation was primarily a for-profit commercial
venture.
Defense Evidence
Leland Besson testified that he had known Mentch
for two years. In June 2003, Besson was on disability and
had a medical marijuana recommendation for a bad back,
neck, and joints. At the time, he was smoking
approximately two to three grams of marijuana a day. For
about one year before Mentch was arrested, Besson
purchased his marijuana exclusively from Mentch, who
knew about Besson's medical marijuana
recommendation. Mentch supplied medical marijuana
through his business, the Hemporium. Besson gave
Mentch $ 150 to $ 200 in cash every month for one and
one-half ounces of marijuana, the amount Besson usually
consumed in a month.
Laura Eldridge testified she had known Mentch for
about three years. In June 2003, she was working as a
Page 2
caretaker for Besson, cooking and cleaning for him,
driving him to the grocery store, and driving him to
medical appointments and to pick up his medications.
Eldridge also drove Besson to Mentch's house to get him
his marijuana. The only time Besson saw Mentch was
when Eldridge took him to Mentch's house to get
marijuana.
At the time, Eldridge herself had a medical
marijuana recommendation for migraine headaches and
posttraumatic stress disorder. She was smoking about five
or six marijuana cigarettes a day and consuming about
one ounce of marijuana a month. Eldridge obtained
marijuana exclusively from Mentch for approximately
one and one-half years before his arrest. Mentch provided
the marijuana through his medical marijuana business,
the Hemporium. Eldridge obtained the marijuana from
Mentch every month, paying him $ 200 to $ 250 in cash
for one ounce and $ 25 in cash for one-eighth of an ounce
if she needed more.
Eldridge was at Mentch's house getting her daughter
ready for school on the morning of Mentch's arrest. At
the time, she and Mentch were not living together but
were seeing each other romantically, and Eldridge had
stayed over at Mentch's house the night before the search
warrant was served.
Mentch took the stand in his own defense. In 2002,
he obtained a medical marijuana recommendation and
began growing marijuana. He learned how to grow
marijuana from reading books, searching the Internet, and
talking to people. He kept marijuana plants in all three
stages of growth so that he was in a constant cycle of
marijuana production, which produced a yield of four
harvests a year. Mentch's medical marijuana
recommendation was still current on the day the police
searched his home. At that time, he smoked four to six
marijuana cigarettes a day (approximately one-sixteenth
of an ounce) and consumed between one and one-half to
two ounces of marijuana a month.
Mentch opened the Hemporium, a caregiving and
consultancy business, in March 2003. The purpose of the
Hemporium was to give people safe access to medical
marijuana. Mentch regularly provided marijuana to five
other individuals, including Besson, Eldridge, and a man
named Mike Manstock. Sometimes he did not charge
them. All five individuals had valid medical marijuana
recommendations. Mentch did not provide marijuana to
anyone who did not have a medical marijuana
recommendation. Occasionally, he took any extra
marijuana he had to two different cannabis clubs, The
Third Floor and another unnamed place. Although a
majority of the marijuana plants in Mentch's home
belonged to him, some belonged to Manstock. In
addition, Mentch let Besson and Eldridge grow one or
two plants.
Mentch provided marijuana to Besson about once
every month and to Eldridge about once or twice every
month. On average, they each gave him $ 150 to $ 200
for an ounce and a half of marijuana a month. Mentch
considered his marijuana "high-grade" and provided it to
Besson and Eldridge for less than street value. He used
the money they paid him to pay for "nutrients, utilities,
part of the rent." Mentch did not profit from his sales of
marijuana, and sometimes he did not even recover his
costs of growing it. Mentch counseled his
patients/customers about the best strains of marijuana to
grow for their ailments and the cleanest way to use the
marijuana. He took a "couple of them" to medical
appointments on a "sporadic" basis.
Although Mentch asked all five patients to come to
court and testify on his behalf, only Besson and Eldridge
showed up. He did not subpoena the others because one
of them was out of state, another did not want to be
involved because his father was an attorney, and the third
did not want to testify.
The Primary Caregiver Defense
Before trial, the prosecutor filed a motion in limine
to exclude any references by counsel during voir dire,
testimony, or closing argument to Mentch's being a
"primary caregiver" for Eldridge or Besson. 3 The
prosecutor asserted that Eldridge and Besson could testify
to any care Mentch had provided them, but argued that
the ultimate determination whether Mentch was a
primary caregiver rested with the jury. The trial court
granted the motion.
3 The Act extends limited immunity from state
prosecution for cultivation or possession to both
qualified patients and their designated "primary
caregiver." (§ 11362.5, subd. (d).)
After Eldridge and Besson testified, the court
concluded the evidence was insufficient to show that
Mentch had provided primary caregiver services. Mentch
argued in a brief to the court that a person could qualify
as a patient's primary caregiver whenever he or she
consistently assumed responsibility for a patient's health
by providing medical marijuana upon a doctor's
recommendation or approval. The trial court rejected the
argument.
The Jury's Verdict and Subsequent Proceedings
So instructed, the jury convicted Mentch of both
cultivation and possession for sale. (§§ 11358, 11359.)
The trial court suspended imposition of sentence and
imposed three years' probation.
The Court of Appeal reversed Mentch's convictions.
It concluded: "Where, as here, [Mentch] presented
evidence that he not only grew medical marijuana for
several qualified patients, but also counseled them on the
best varieties to grow and use for their ailments and
accompanied them to medical appointments, albeit on a
sporadic basis, there was enough evidence to present to
the jury." Because there was sufficient evidence to
support an instruction on the primary caregiver defense,
the trial court erred by redacting all references to it in
CALJIC No. 12.24.1. (See People v. Michaels (2002) 28
Cal.4th 486, 529 [122 Cal. Rptr. 2d 285, 49 P.3d 1032]
[defendant has a right to have the trial court give a jury
instruction on any affirmative defense for which the
record contains substantial evidence].)
We granted review to address the meaning of
"primary caregiver" under the Act.
DISCUSSION
I. The Primary Caregiver Defense
A. The Meaning of "Primary Caregiver"
This statutory definition has two parts: (1) a primary
caregiver must have been designated as such by the
medicinal marijuana patient; and (2) he or she must be a
person "who has consistently assumed responsibility for
the housing, health, or safety of" the patient. It is clear
from the structure of subdivision (e) of section 11362.5
that this latter part of the definition has additional
restrictive power, or else the subdivision would have
ended with the phrase "by the person exempted under this
section," thereby allowing every patient to designate one
person without limitation. Thus, to qualify for exemption
under this subdivision, a person must satisfy both
halves--the "designee" clause and the "responsibility"
clause. (See People v. Mower (2002) 28 Cal.4th 457, 475
[122 Cal. Rptr. 2d 326, 49 P.3d 1067] ["For a person to
be a qualified primary caregiver, he or she must be
'designated' as such by a qualified patient, and must have
'consistently assumed responsibility' for the qualified
patient's 'housing, health, or safety.' " (Italics added.)].)
Designation is necessary, but not sufficient. (People v.
Urziceanu (2005) 132 Cal.App.4th 747, 773 [33 Cal.
Rptr. 3d 859]; People ex rel. Lungren v. Peron (1997) 59
Cal.App.4th 1383, 1397 [70 Cal. Rptr. 2d 20].)
Three aspects of the structure of the responsibility
clause are noteworthy. From these aspects, as we shall
explain, we conclude a defendant asserting primary
caregiver status must prove at a minimum that he or she
(1) consistently provided caregiving, (2) independent of
any assistance in taking medical marijuana, (3) at or
before the time he or she assumed responsibility for
assisting with medical marijuana.
First, the text requires that the primary caregiver
have "consistently" assumed responsibility for the
patient's care. "Consistently" suggests an ongoing
relationship marked by regular and repeated actions over
time. In People ex rel. Lungren v. Peron, supra, 59
Cal.App.4th 1383, for example, the many customers of a
marijuana club, the Cannabis Buyers' Club, executed pro
forma designations of the club as their primary caregiver.
The Court of Appeal correctly rejected the assertion that
the buyers' club could qualify as a primary caregiver in
these circumstances: "A person purchasing marijuana for
medicinal purposes cannot simply designate seriatim, and
on an ad hoc basis, drug dealers on street corners and
sales centers such as the Cannabis Buyers' Club as the
patient's 'primary caregiver.' The primary caregiver the
patient designates must be one 'who has consistently
assumed responsibility for the housing, health, or safety
of [the patient].'" (Id. at p. 1396.) One must
consistently--"with persistent uniformity" (3 Oxford
English Dict. (2d ed. 1989) p. 773) or "in a persistent or
even manner" (Webster's 3d New Internat. Dict. (2002) p.
484)--have assumed responsibility for a patient's housing,
health, or safety, or some combination of the three.
Second, the definition of a primary caregiver is
written using a past participle--"has consistently
assumed." (§ 11362.5, subd. (e).) This reinforces the
inference arising from the use of the word "consistently"
that primary caregiver status requires an existing,
established relationship. In some situations, the formation
of a bona fide caregiving relationship and the onset of
assistance in taking medical marijuana may be
contemporaneous, as with a cancer patient entering
chemotherapy who has a recommendation for medical
marijuana use and has a live-in or home-visit nurse to
assist with all aspects of his or her health care, including
marijuana consumption. (See § 11362.7, subd. (d)(1)
[primary caregiver may include employees of hospice or
Page 5
home health agency].) Even in this scenario, however, the
caregiving relationship will arise at or before the onset of
assistance in the administration of marijuana. What is not
permitted is for an individual to establish an after-the-fact
caregiving relationship in an effort to thereby immunize
from prosecution previous cultivation or possession for
sale. (Cf. People v. Rigo (1999) 69 Cal.App.4th 409,
412-415 [81 Cal. Rptr. 2d 624] [doctor may not give
postarrest recommendation to bless prior use].)5
We thus agree with the Court of Appeal in People v.
Frazier (2005) 128 Cal.App.4th 807, 823 [27 Cal. Rptr.
3d 336], which rejected the argument that "a 'primary
caregiver' is a person who 'consistently grows and
supplies physician approved marijuana for a medical
marijuana patient to serve the health needs of that patient'
... ." The Frazier court concluded that, while if one were
already qualified as a primary caregiver one could
consistently grow and supply medical marijuana to a
patient, the consistent growth and supply of medical
marijuana would not by itself place one in the class of
primary caregivers. (Ibid.; see also People v. Windus
(2008) 165 Cal.App.4th 634, 644 [81 Cal. Rptr. 3d 227]
["Case law is clear that one who merely supplies a patient
with marijuana has no defense under the [Act]."].) 6
6 Mentch directs us to the Attorney General's
Act guidelines concerning medical marijuana (see
§ 11362.81, subd. (d)) as supporting a contrary
definition of "primary caregiver," but in fact the
guidelines are wholly consistent with case law
and the statutory text and afford Mentch no
support. The guidelines note: "Although a
'primary caregiver who consistently grows and
supplies ... medicinal marijuana for a section
11362.5 patient is serving a health need of the
patient,' someone who merely maintains a source
of marijuana does not automatically become the
party 'who has consistently assumed responsibility
for the housing, health, or safety' of that
purchaser." (Cal. Atty. Gen., Guidelines for the
Security and Non-diversion of Marijuana Grown
for Medical Use (Aug. 2008) pt. II.B., p. 4.) They
do not suggest provision of medical marijuana is
alone sufficient to qualify one as a primary
caregiver, but recognize instead that the provision
of marijuana may be one part of caregiving for an
ailing patient.
The trial court accurately assessed the law when, in
denying Mentch's request for a primary caregiver
instruction, it explained: "I'm satisfied that simply
providing marijuana, in and of itself to these folks does
not--you don't bootstrap yourself to becoming the
primary caregiver because you're providing [marijuana]"
and "you have to be a caregiver before you can provide
the marijuana." (Italics added.) Later, in denying
Mentch's motion for a judgment of acquittal (Pen. Code,
§ 1118.1), the trial court reiterated the point: "There has
to be something more to be a caregiver than simply
providing marijuana. Otherwise, there would be no
reason to have the definition of a caregiver, because
anybody who would be providing marijuana and related
services would qualify as a caregiver[,] therefore giving
them a defense to the very activity that's otherwise
illegal, and I don't think that makes any sense in terms of
statutory construction, nor do I think it was intended by
the people or the Legislature."
Mentch himself highlights the dog-chasing-its-tail
absurdity of allowing the administration of medical
marijuana to patients to form the basis for authorizing the
administration of medical marijuana to patients in his
Page 6
attempts to distinguish this case from People ex rel.
Lungren v. Peron, supra, 59 Cal.App.4th 1383, and
People v. Urziceanu, supra, 132 Cal.App.4th 747. Peron
and Urziceanu, he argues, involved only casual or
occasional provision of medical marijuana; here, in
contrast, he "consistently" provided medical marijuana,
"consistently" allowed his patients to cultivate medical
marijuana at his house, and was his five patients'
"exclusive source" for medical marijuana. The essence of
this argument is that the occasional provision of
marijuana to someone is illegal, but the frequent
provision of marijuana to that same person may be
lawful. The vice in the approach of the cooperatives at
issue in Peron and Urziceanu therefore evidently was not
that they provided marijuana to their customers; it was
that they did not do it enough.
Nothing in the text or in the supporting ballot
arguments suggests this is what the voters intended. The
words the statute uses--housing, health, safety--imply a
caretaking relationship directed at the core survival needs
of a seriously ill patient, not just one single
pharmaceutical need. The ballot arguments in support
suggest a patient is generally personally responsible for
noncommercially supplying his or her own marijuana:
?Proposition 215 allows patients to cultivate their own
marijuana simply because federal laws prevent the sale of
marijuana, and a state initiative cannot overrule those
laws." (Ballot Pamp., Gen. Elec. (Nov. 5, 1996) argument
in favor of Prop. 215, p. 60.) But as the focus is on the
"seriously and terminally ill" (ibid.), logically the Act
must offer some alternative for those unable to act in their
own behalf; accordingly, the Act allows "'primary
caregiver' the same authority to act on behalf of those
too ill or bedridden to do so" (People ex rel. Lungren v.
Peron, supra, 59 Cal.App.4th at p. 1394). To exercise
that authority, however, one must be a
"primary"--principal, lead, central--"caregiver"--one
responsible for rendering assistance in the provision of
daily life necessities--for a qualifying seriously or
terminally ill patient. 7
7 The Act is a narrow measure with narrow ends.
As we acknowledged only months ago, "'the
proponents' ballot arguments reveal a delicate
tightrope walk designed to induce voter approval,
which we would upset were we to stretch the
proposition's limited immunity to cover that
which its language does not.' " (Ross v.
RagingWire Telecommunications, Inc. (2008) 42
Cal.4th 920, 930 [70 Cal. Rptr. 3d 382, 174 P.3d
200], quoting People v. Galambos (2002) 104
Cal.App.4th 1147, 1152 [128 Cal. Rptr. 2d 844].)
The Act's drafters took pains to note that "neither
relaxation much less evisceration of the state's
marijuana laws was envisioned." (People v.
Trippet (1997) 56 Cal.App.4th 1532, 1546 [66
Cal. Rptr. 2d 559]; see also People v. Urziceanu,
supra, 132 Cal.App.4th at pp. 772-773 [the Act
"is a narrowly drafted statute," not an attempt to
"decriminalize marijuana on a wholesale basis"].)
We must interpret the text with those constraints
in mind.
We have no doubt our interpretation of the statute
will pose no obstacle for those bona fide primary
caregivers whose ministrations to their patients the Act
was actually intended to shield from prosecution. The
spouse or domestic partner caring for his or her ailing
companion, the child caring for his or her ailing parent,
the hospice nurse caring for his or her ailing patient--each
can point to the many ways in which they, medical
marijuana aside, attend to and assume responsibility for
the core survival needs of their dependents. The Act
allows them, insofar as state criminal law is concerned, to
add the provision of marijuana, where medically
recommended or approved, as one more arrow in their
caregiving quiver. It simply does not provide similar
protection where the provision of marijuana is itself the
substance of the relationship
Having closely analyzed the text of section
11362.765, however, we conclude it does not do what
Mentch says it does. While the Program does convey
additional immunities against cultivation and possession
for sale charges to specific groups of people, it does so
only for specific actions; it does not provide globally that
the specified groups of people may never be charged with
cultivation or possession for sale.
Here, this means Mentch, to the extent he assisted in
administering, or advised or counseled in the
administration or cultivation of, medical marijuana, could
not be charged with cultivation or possession for sale "on
that sole basis." (§ 11362.765, subd. (a).) It does not
mean Mentch 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. As it is undisputed Mentch did much more than
administer, advise, and counsel, the Program provides
him no defense, and the trial court did not err in failing to
instruct on it.
DISPOSITION
For the foregoing reasons, we reverse the Court of
Appeal's judgment.
George, C. J., Kennard, J., Baxter, J., Chin, J.,
Moreno, J., and Corrigan, J., concurred.
Anybody, feel free to add parts of the opinion in this thread that I have left out.
THE PEOPLE, Plaintiff and Respondent, v. ROGER WILLIAM MENTCH,
Defendant and Appellant.
S148204
SUPREME COURT OF CALIFORNIA
45 Cal. 4th 274; 195 P.3d 1061; 85 Cal. Rptr. 3d 480; 2008 Cal. LEXIS 13630
November 24, 2008, Filed
OPINION
WERDEGAR, J.--The Compassionate Use Act of
1996 (Act; Health & Saf. Code, § 11362.5, added by
voter initiative, Prop. 215, Gen. Elec. (Nov. 5, 1996))
provides partial immunity for the possession and
Page 1
cultivation of marijuana to two groups of people:
qualified medical marijuana patients and their primary
caregivers. We consider here who may qualify as a
primary caregiver. We hold that a defendant whose
caregiving consisted principally of supplying marijuana
and instructing on its use, and who otherwise only
sporadically took some patients to medical appointments,
cannot qualify as a primary caregiver under the Act and
was not entitled to an instruction on the primary caregiver
affirmative defense. We further conclude that nothing in
the Legislature's subsequent 2003 Medical Marijuana
Program (Health & Saf. Code, § 11362.7 et seq.) alters
this conclusion or offers any additional defense on this
record. Accordingly, we reverse the Court of Appeal.
FACTUAL AND PROCEDURAL BACKGROUND
In 2003, Roger William Mentch was arrested and
charged with the cultivation of marijuana (Health & Saf.
Code, § 11358) 1 and its possession for sale (§ 11359). 2
1 All further unlabeled statutory references are
to the Health and Safety Code.
2 Mentch was also charged with manufacturing
and possessing concentrated cannabis (also
known as hash oil) (§§ 11357, subd. (a), 11379.6,
subd. (a)), possessing psilocybin mushrooms (§
11377, subd. (a)), and firearm enhancements for
the marijuana and hash oil counts (Pen. Code, §
12022, subd. (a)(1)), but these additional counts
have no bearing on the issues in this appeal, and
we do not address them further.
Prosecution Evidence
Heidi Roth, a teller at Monterey Bay Bank, testified
that she became familiar with Mentch over the period of
February to April 2003. Mentch came to the bank on
several occasions and made large deposits of cash in
small bills, each deposit totaling over $ 2,000. Roth
noticed that some of the money Mentch deposited
smelled so strongly of marijuana that the smell filled the
bank, and the bank had to remove the money from
circulation. The total amount Mentch deposited with the
bank over a two-month period was $ 10,750. On April
15, 2003, Roth filed a suspicious activity report with the
Santa Cruz County Sheriff's Office, relating the
questionable nature of Mentch's deposits.
After further investigation, the sheriff's office
obtained a warrant to search Mentch's house for
marijuana. On June 6, 2003, Mark Yanez, a narcotics
investigator, and four deputies went to Mentch's house to
serve the warrant. When Mentch opened the door, Yanez
told him they had a warrant to search his house for
marijuana. Mentch told Yanez that he had a medical
recommendation for marijuana. A search of Mentch's
person turned up $ 253 in cash and a small vial of hash
oil, or concentrated cannabis. Yanez advised Mentch of
his rights and interviewed him in a police vehicle parked
outside Mentch's residence.
Mentch told Yanez he had a medical marijuana
recommendation for colitis, dysphoria, and depression,
and that he smoked about four marijuana cigarettes,
totaling approximately one-sixteenth of an ounce, per day
for medicinal purposes. When Yanez asked Mentch if he
sold marijuana, Mentch responded that he sold it to five
medical marijuana users.
A search of Mentch's residence revealed several
elaborate marijuana growing setups. In various rooms of
the house, the deputies found 82 marijuana plants in the
flowering or budding stage, 57 "clone" marijuana plants,
48 marijuana plants in the growing or vegetative stage,
and three "mother" plants, which Yanez opined were
likely the female plants from which clippings were taken
to make the clone plants. Considering the evidence seized
from Mentch's bank and residence, as well as his
statement to Yanez, Yanez opined that while Mentch may
have personally consumed some of the marijuana he
grew, his operation was primarily a for-profit commercial
venture.
Defense Evidence
Leland Besson testified that he had known Mentch
for two years. In June 2003, Besson was on disability and
had a medical marijuana recommendation for a bad back,
neck, and joints. At the time, he was smoking
approximately two to three grams of marijuana a day. For
about one year before Mentch was arrested, Besson
purchased his marijuana exclusively from Mentch, who
knew about Besson's medical marijuana
recommendation. Mentch supplied medical marijuana
through his business, the Hemporium. Besson gave
Mentch $ 150 to $ 200 in cash every month for one and
one-half ounces of marijuana, the amount Besson usually
consumed in a month.
Laura Eldridge testified she had known Mentch for
about three years. In June 2003, she was working as a
Page 2
caretaker for Besson, cooking and cleaning for him,
driving him to the grocery store, and driving him to
medical appointments and to pick up his medications.
Eldridge also drove Besson to Mentch's house to get him
his marijuana. The only time Besson saw Mentch was
when Eldridge took him to Mentch's house to get
marijuana.
At the time, Eldridge herself had a medical
marijuana recommendation for migraine headaches and
posttraumatic stress disorder. She was smoking about five
or six marijuana cigarettes a day and consuming about
one ounce of marijuana a month. Eldridge obtained
marijuana exclusively from Mentch for approximately
one and one-half years before his arrest. Mentch provided
the marijuana through his medical marijuana business,
the Hemporium. Eldridge obtained the marijuana from
Mentch every month, paying him $ 200 to $ 250 in cash
for one ounce and $ 25 in cash for one-eighth of an ounce
if she needed more.
Eldridge was at Mentch's house getting her daughter
ready for school on the morning of Mentch's arrest. At
the time, she and Mentch were not living together but
were seeing each other romantically, and Eldridge had
stayed over at Mentch's house the night before the search
warrant was served.
Mentch took the stand in his own defense. In 2002,
he obtained a medical marijuana recommendation and
began growing marijuana. He learned how to grow
marijuana from reading books, searching the Internet, and
talking to people. He kept marijuana plants in all three
stages of growth so that he was in a constant cycle of
marijuana production, which produced a yield of four
harvests a year. Mentch's medical marijuana
recommendation was still current on the day the police
searched his home. At that time, he smoked four to six
marijuana cigarettes a day (approximately one-sixteenth
of an ounce) and consumed between one and one-half to
two ounces of marijuana a month.
Mentch opened the Hemporium, a caregiving and
consultancy business, in March 2003. The purpose of the
Hemporium was to give people safe access to medical
marijuana. Mentch regularly provided marijuana to five
other individuals, including Besson, Eldridge, and a man
named Mike Manstock. Sometimes he did not charge
them. All five individuals had valid medical marijuana
recommendations. Mentch did not provide marijuana to
anyone who did not have a medical marijuana
recommendation. Occasionally, he took any extra
marijuana he had to two different cannabis clubs, The
Third Floor and another unnamed place. Although a
majority of the marijuana plants in Mentch's home
belonged to him, some belonged to Manstock. In
addition, Mentch let Besson and Eldridge grow one or
two plants.
Mentch provided marijuana to Besson about once
every month and to Eldridge about once or twice every
month. On average, they each gave him $ 150 to $ 200
for an ounce and a half of marijuana a month. Mentch
considered his marijuana "high-grade" and provided it to
Besson and Eldridge for less than street value. He used
the money they paid him to pay for "nutrients, utilities,
part of the rent." Mentch did not profit from his sales of
marijuana, and sometimes he did not even recover his
costs of growing it. Mentch counseled his
patients/customers about the best strains of marijuana to
grow for their ailments and the cleanest way to use the
marijuana. He took a "couple of them" to medical
appointments on a "sporadic" basis.
Although Mentch asked all five patients to come to
court and testify on his behalf, only Besson and Eldridge
showed up. He did not subpoena the others because one
of them was out of state, another did not want to be
involved because his father was an attorney, and the third
did not want to testify.
The Primary Caregiver Defense
Before trial, the prosecutor filed a motion in limine
to exclude any references by counsel during voir dire,
testimony, or closing argument to Mentch's being a
"primary caregiver" for Eldridge or Besson. 3 The
prosecutor asserted that Eldridge and Besson could testify
to any care Mentch had provided them, but argued that
the ultimate determination whether Mentch was a
primary caregiver rested with the jury. The trial court
granted the motion.
3 The Act extends limited immunity from state
prosecution for cultivation or possession to both
qualified patients and their designated "primary
caregiver
After Eldridge and Besson testified, the court
concluded the evidence was insufficient to show that
Mentch had provided primary caregiver services. Mentch
argued in a brief to the court that a person could qualify
as a patient's primary caregiver whenever he or she
consistently assumed responsibility for a patient's health
by providing medical marijuana upon a doctor's
recommendation or approval. The trial court rejected the
argument.
The Jury's Verdict and Subsequent Proceedings
So instructed, the jury convicted Mentch of both
cultivation and possession for sale. (§§ 11358, 11359.)
The trial court suspended imposition of sentence and
imposed three years' probation.
The Court of Appeal reversed Mentch's convictions.
It concluded: "Where, as here, [Mentch] presented
evidence that he not only grew medical marijuana for
several qualified patients, but also counseled them on the
best varieties to grow and use for their ailments and
accompanied them to medical appointments, albeit on a
sporadic basis, there was enough evidence to present to
the jury." Because there was sufficient evidence to
support an instruction on the primary caregiver defense,
the trial court erred by redacting all references to it in
CALJIC No. 12.24.1. (See People v. Michaels (2002) 28
Cal.4th 486, 529 [122 Cal. Rptr. 2d 285, 49 P.3d 1032]
[defendant has a right to have the trial court give a jury
instruction on any affirmative defense for which the
record contains substantial evidence].)
We granted review to address the meaning of
"primary caregiver" under the Act.
DISCUSSION
I. The Primary Caregiver Defense
A. The Meaning of "Primary Caregiver"
This statutory definition has two parts: (1) a primary
caregiver must have been designated as such by the
medicinal marijuana patient; and (2) he or she must be a
person "who has consistently assumed responsibility for
the housing, health, or safety of" the patient. It is clear
from the structure of subdivision (e) of section 11362.5
that this latter part of the definition has additional
restrictive power, or else the subdivision would have
ended with the phrase "by the person exempted under this
section," thereby allowing every patient to designate one
person without limitation. Thus, to qualify for exemption
under this subdivision, a person must satisfy both
halves--the "designee" clause and the "responsibility"
clause. (See People v. Mower (2002) 28 Cal.4th 457, 475
[122 Cal. Rptr. 2d 326, 49 P.3d 1067] ["For a person to
be a qualified primary caregiver, he or she must be
'designated' as such by a qualified patient, and must have
'consistently assumed responsibility' for the qualified
patient's 'housing, health, or safety.' " (Italics added.)].)
Designation is necessary, but not sufficient. (People v.
Urziceanu (2005) 132 Cal.App.4th 747, 773 [33 Cal.
Rptr. 3d 859]; People ex rel. Lungren v. Peron (1997) 59
Cal.App.4th 1383, 1397 [70 Cal. Rptr. 2d 20].)
Three aspects of the structure of the responsibility
clause are noteworthy. From these aspects, as we shall
explain, we conclude a defendant asserting primary
caregiver status must prove at a minimum that he or she
(1) consistently provided caregiving, (2) independent of
any assistance in taking medical marijuana, (3) at or
before the time he or she assumed responsibility for
assisting with medical marijuana.
First, the text requires that the primary caregiver
have "consistently" assumed responsibility for the
patient's care. "Consistently" suggests an ongoing
relationship marked by regular and repeated actions over
time. In People ex rel. Lungren v. Peron, supra, 59
Cal.App.4th 1383, for example, the many customers of a
marijuana club, the Cannabis Buyers' Club, executed pro
forma designations of the club as their primary caregiver.
The Court of Appeal correctly rejected the assertion that
the buyers' club could qualify as a primary caregiver in
these circumstances: "A person purchasing marijuana for
medicinal purposes cannot simply designate seriatim, and
on an ad hoc basis, drug dealers on street corners and
sales centers such as the Cannabis Buyers' Club as the
patient's 'primary caregiver.' The primary caregiver the
patient designates must be one 'who has consistently
assumed responsibility for the housing, health, or safety
of [the patient].'" (Id. at p. 1396.) One must
consistently--"with persistent uniformity" (3 Oxford
English Dict. (2d ed. 1989) p. 773) or "in a persistent or
even manner" (Webster's 3d New Internat. Dict. (2002) p.
484)--have assumed responsibility for a patient's housing,
health, or safety, or some combination of the three.
Second, the definition of a primary caregiver is
written using a past participle--"has consistently
assumed." (§ 11362.5, subd. (e).) This reinforces the
inference arising from the use of the word "consistently"
that primary caregiver status requires an existing,
established relationship. In some situations, the formation
of a bona fide caregiving relationship and the onset of
assistance in taking medical marijuana may be
contemporaneous, as with a cancer patient entering
chemotherapy who has a recommendation for medical
marijuana use and has a live-in or home-visit nurse to
assist with all aspects of his or her health care, including
marijuana consumption. (See § 11362.7, subd. (d)(1)
[primary caregiver may include employees of hospice or
Page 5
home health agency].) Even in this scenario, however, the
caregiving relationship will arise at or before the onset of
assistance in the administration of marijuana. What is not
permitted is for an individual to establish an after-the-fact
caregiving relationship in an effort to thereby immunize
from prosecution previous cultivation or possession for
sale. (Cf. People v. Rigo (1999) 69 Cal.App.4th 409,
412-415 [81 Cal. Rptr. 2d 624] [doctor may not give
postarrest recommendation to bless prior use].)5
We thus agree with the Court of Appeal in People v.
Frazier (2005) 128 Cal.App.4th 807, 823 [27 Cal. Rptr.
3d 336], which rejected the argument that "a 'primary
caregiver' is a person who 'consistently grows and
supplies physician approved marijuana for a medical
marijuana patient to serve the health needs of that patient'
... ." The Frazier court concluded that, while if one were
already qualified as a primary caregiver one could
consistently grow and supply medical marijuana to a
patient, the consistent growth and supply of medical
marijuana would not by itself place one in the class of
primary caregivers. (Ibid.; see also People v. Windus
(2008) 165 Cal.App.4th 634, 644 [81 Cal. Rptr. 3d 227]
["Case law is clear that one who merely supplies a patient
with marijuana has no defense under the [Act]."].) 6
6 Mentch directs us to the Attorney General's
Act guidelines concerning medical marijuana (see
§ 11362.81, subd. (d)) as supporting a contrary
definition of "primary caregiver," but in fact the
guidelines are wholly consistent with case law
and the statutory text and afford Mentch no
support. The guidelines note: "Although a
'primary caregiver who consistently grows and
supplies ... medicinal marijuana for a section
11362.5 patient is serving a health need of the
patient,' someone who merely maintains a source
of marijuana does not automatically become the
party 'who has consistently assumed responsibility
for the housing, health, or safety' of that
purchaser." (Cal. Atty. Gen., Guidelines for the
Security and Non-diversion of Marijuana Grown
for Medical Use (Aug. 2008) pt. II.B., p. 4.) They
do not suggest provision of medical marijuana is
alone sufficient to qualify one as a primary
caregiver, but recognize instead that the provision
of marijuana may be one part of caregiving for an
ailing patient.
The trial court accurately assessed the law when, in
denying Mentch's request for a primary caregiver
instruction, it explained: "I'm satisfied that simply
providing marijuana, in and of itself to these folks does
not--you don't bootstrap yourself to becoming the
primary caregiver because you're providing [marijuana]"
and "you have to be a caregiver before you can provide
the marijuana." (Italics added.) Later, in denying
Mentch's motion for a judgment of acquittal (Pen. Code,
§ 1118.1), the trial court reiterated the point: "There has
to be something more to be a caregiver than simply
providing marijuana. Otherwise, there would be no
reason to have the definition of a caregiver, because
anybody who would be providing marijuana and related
services would qualify as a caregiver[,] therefore giving
them a defense to the very activity that's otherwise
illegal, and I don't think that makes any sense in terms of
statutory construction, nor do I think it was intended by
the people or the Legislature."
Mentch himself highlights the dog-chasing-its-tail
absurdity of allowing the administration of medical
marijuana to patients to form the basis for authorizing the
administration of medical marijuana to patients in his
Page 6
attempts to distinguish this case from People ex rel.
Lungren v. Peron, supra, 59 Cal.App.4th 1383, and
People v. Urziceanu, supra, 132 Cal.App.4th 747. Peron
and Urziceanu, he argues, involved only casual or
occasional provision of medical marijuana; here, in
contrast, he "consistently" provided medical marijuana,
"consistently" allowed his patients to cultivate medical
marijuana at his house, and was his five patients'
"exclusive source" for medical marijuana. The essence of
this argument is that the occasional provision of
marijuana to someone is illegal, but the frequent
provision of marijuana to that same person may be
lawful. The vice in the approach of the cooperatives at
issue in Peron and Urziceanu therefore evidently was not
that they provided marijuana to their customers; it was
that they did not do it enough.
Nothing in the text or in the supporting ballot
arguments suggests this is what the voters intended. The
words the statute uses--housing, health, safety--imply a
caretaking relationship directed at the core survival needs
of a seriously ill patient, not just one single
pharmaceutical need. The ballot arguments in support
suggest a patient is generally personally responsible for
noncommercially supplying his or her own marijuana:
?Proposition 215 allows patients to cultivate their own
marijuana simply because federal laws prevent the sale of
marijuana, and a state initiative cannot overrule those
laws." (Ballot Pamp., Gen. Elec. (Nov. 5, 1996) argument
in favor of Prop. 215, p. 60.) But as the focus is on the
"seriously and terminally ill" (ibid.), logically the Act
must offer some alternative for those unable to act in their
own behalf; accordingly, the Act allows "'primary
caregiver
too ill or bedridden to do so" (People ex rel. Lungren v.
Peron, supra, 59 Cal.App.4th at p. 1394). To exercise
that authority, however, one must be a
"primary"--principal, lead, central--"caregiver"--one
responsible for rendering assistance in the provision of
daily life necessities--for a qualifying seriously or
terminally ill patient. 7
7 The Act is a narrow measure with narrow ends.
As we acknowledged only months ago, "'the
proponents' ballot arguments reveal a delicate
tightrope walk designed to induce voter approval,
which we would upset were we to stretch the
proposition's limited immunity to cover that
which its language does not.' " (Ross v.
RagingWire Telecommunications, Inc. (2008) 42
Cal.4th 920, 930 [70 Cal. Rptr. 3d 382, 174 P.3d
200], quoting People v. Galambos (2002) 104
Cal.App.4th 1147, 1152 [128 Cal. Rptr. 2d 844].)
The Act's drafters took pains to note that "neither
relaxation much less evisceration of the state's
marijuana laws was envisioned." (People v.
Trippet (1997) 56 Cal.App.4th 1532, 1546 [66
Cal. Rptr. 2d 559]; see also People v. Urziceanu,
supra, 132 Cal.App.4th at pp. 772-773 [the Act
"is a narrowly drafted statute," not an attempt to
"decriminalize marijuana on a wholesale basis"].)
We must interpret the text with those constraints
in mind.
We have no doubt our interpretation of the statute
will pose no obstacle for those bona fide primary
caregivers whose ministrations to their patients the Act
was actually intended to shield from prosecution. The
spouse or domestic partner caring for his or her ailing
companion, the child caring for his or her ailing parent,
the hospice nurse caring for his or her ailing patient--each
can point to the many ways in which they, medical
marijuana aside, attend to and assume responsibility for
the core survival needs of their dependents. The Act
allows them, insofar as state criminal law is concerned, to
add the provision of marijuana, where medically
recommended or approved, as one more arrow in their
caregiving quiver. It simply does not provide similar
protection where the provision of marijuana is itself the
substance of the relationship
Having closely analyzed the text of section
11362.765, however, we conclude it does not do what
Mentch says it does. While the Program does convey
additional immunities against cultivation and possession
for sale charges to specific groups of people, it does so
only for specific actions; it does not provide globally that
the specified groups of people may never be charged with
cultivation or possession for sale.
Here, this means Mentch, to the extent he assisted in
administering, or advised or counseled in the
administration or cultivation of, medical marijuana, could
not be charged with cultivation or possession for sale "on
that sole basis." (§ 11362.765, subd. (a).) It does not
mean Mentch 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. As it is undisputed Mentch did much more than
administer, advise, and counsel, the Program provides
him no defense, and the trial court did not err in failing to
instruct on it.
DISPOSITION
For the foregoing reasons, we reverse the Court of
Appeal's judgment.
George, C. J., Kennard, J., Baxter, J., Chin, J.,
Moreno, J., and Corrigan, J., concurred.
