People v. Mower

122 Cal.Rptr.2d 326

28 Cal.4th 457

49 P.3d 1067

The PEOPLE, Plaintiff and Respondent, v. Myron Carlyle MOWER, Defendant and Appellant.

No. S094490.

Supreme Court of California.

July 18, 2002.

Gerald F. Uelmen, Santa Clara, under appointment by the Supreme Court; and Richard D. Runcie, Fresno, under appointment by the Court of Appeal, for Defendant and Appellant.

Ann Brick for the ACLU of Northern California as Amicus Curiae on behalf of Defendant and Appellant.

Graham Boyd for American Civil Liberties Union as Amicus Curiae on behalf of Defendant and Appellant.

Mark Rosenbaum, Los Angeles, for the ACLU of Southern California as Amicus Curiae on behalf of Defendant and Appellant.

Jordan C. Budd for the ACLU of San Diego and Imperial Counties as Amicus Curiae on behalf of Defendant and Appellant.

Daniel N. Abrahamson for the Lindesmith Center Drug-Policy Foundation as Amicus Curiae on behalf of Defendant and Appellant.

Law Office of J. David Nick, J. David Nick and Ean Vizzi for National Organization for the Reform of Marijuana Laws as Amicus Curiae on behalf of Defendant and Appellant.

Massa & Associates and Richard J. Massa, Lakeport, for Sudi Pebbles Trippet and Tod Mikuriya as Amici Curiae on behalf of Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner and Robert R. Anderson, Chief Assistant Attorneys General, Jo Graves, Acting Assistant Attorney General, Stephen G. Herndon and Maureen A. Daly, Deputy Attorneys General, for Plaintiff and Respondent.

GEORGE, C.J.

Sections 11357 and 11358 of the Health and Safety Code make it a crime to possess and cultivate marijuana.¹

At the General Election held on November 5, 1996, the electors approved an initiative statute designated on the ballot as Proposition 215 and entitled Medical Use of Marijuana. In pertinent part, the measure added section 11362.5, the Compassionate Use Act of 1996. (Prop. 215, § 1, as approved by electors, Gen. Elec. (Nov. 5, 1996) adding § 11362.5, subd. (a).) Subdivision (d) of section 11362.5 (hereafter section 11362.5(d)) provides 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 the written or oral recommendation or approval of a physician."

In the present case, although recognizing that section 11362.5(d) provides a defense at trial, the Court of Appeal concluded that the provision does not grant what defendant characterized before that court as a novel kind of "complete" immunity from prosecution. The immunity invoked by defendant would have shielded him not only from prosecution but even from arrest, and would have required the reversal of his convictions for possession and cultivation of marijuana because of the alleged failure by law enforcement officers to conduct an adequate investigation of his status as a qualified patient or primary caregiver before proceeding to effect an arrest.

As we shall explain, we conclude that the Court of Appeal was correct in concluding that section 11362.5(d) does not confer the "complete" immunity from prosecution claimed by defendant. But we also conclude that, in light of its language and purpose, section 11362.5(d) reasonably must be interpreted to grant a defendant a limited immunity from prosecution, which not only allows a defendant to raise his or her status as a qualified patient or primary caregiver as a defense at trial, but also permits a defendant to raise such status by moving to set aside an indictment or information prior to trial on the ground of the absence of reasonable or probable cause to believe that he or she is guilty. In this case, however, defendant did not make such a pretrial motion and, contrary to his claim, he was not deprived by the trial court of an opportunity to do so.

In his briefing in this court, defendant raises a question concerning the allocation and weight of the burden of proof as to the facts underlying the section 11362.5(d) defense. Defendant contends that the People are required to prove the nonexistence of these facts by a preponderance of the evidence or, at most, that the defendant is required merely to raise a reasonable doubt about their existence. Accordingly he claims that the trial court committed reversible error by instructing the jury that he was required to prove the facts supporting the defense by a preponderance of the evidence. Although the Court of Appeal did not expressly address this issue, it did imply, in the course of discussing another issue, that the trial court's instruction was proper. Even though defendant failed to raise this question in the Court of Appeal, it is of general importance for all future cases involving the section 11362.5(d) defense. The People do not argue that the issue is not properly before us, but rather argue its merits directly and at length. Of substantial moment, the pattern jury instruction CALJIC No. 12.24.1 (1999 rev.) (6th ed.1996) states that the defendant bears the burden of proof as to the underlying facts by a preponderance of the evidence. The general importance of the question counsels us to address it.

We conclude that, under general principles of California law, the burden of proof as to the facts underlying the section 11362.5(d) defense may, and should, be allocated to a defendant, but the defendant should be required merely to raise a reasonable doubt as to those facts rather than to prove them by a preponderance of the evidence. Thus, we conclude that the trial court's instruction in this case, requiring defendant to prove the underlying facts by a preponderance of the evidence, not only was erroneous but also reversible because it went to the heart of the case against defendant.

Accordingly, we conclude that we must reverse the judgment of the Court of Appeal and order the cause to be remanded to the trial court for a new trial before a properly instructed jury.²

I

On December 16, 1997, the People charged defendant Myron Carlyle Mower by information with the crimes of possession and cultivation of marijuana in violation of sections 11357 and 11358. Defendant pleaded not guilty.

At trial before a jury, the evidence, viewed in the light most favorable to the resulting convictions, established the following.

On February 25, 1997, deputies in the Tuolumne County Sheriffs Department conducted a search of defendant's residence, while he was present, pursuant to the conditions of probation that had been imposed on him following a prior conviction for the crime of cultivation of marijuana. Defendant was a patient who suffered from "diabetes and all its complications," including blindness and intractable nausea and consequent weight loss, and often was hospitalized as a result; indeed, as the People expressly acknowledged, defendant was "extremely" ill. Furthermore, defendant possessed and cultivated marijuana on the recommendation of a physician, who advised him to use the substance "to control his nausea and maintain his weight." In the course of their search, the deputies found seven marijuana plants. In response to defendant's claim that he was a qualified patient under section 11362.5(d), the deputies made an investigation into the matter, including communicating with his physician, and did not confiscate any of the plants.

Between February 25 and July 11, 1997, the Tuolumne County Sheriffs Department adopted a policy, apparently as an internal guideline for purposes of investigation and arrest, that limited the possession and cultivation of marijuana by a qualified patient or primary caregiver under section 11362.5(d) to three plants.

On July 11, 1997, deputies conducted another probation search of defendant's residence, this time while he was in a hospital because of complications arising from diabetes. Upon finding 31 marijuana plants at the residence, the deputies left three plants there in accordance with the three-plant policy, and confiscated the remaining 28. Later that day, a deputy interviewed defendant in the hospital. There, defendant stated that he kept the marijuana plants for himself and for two other persons who were "patients" with "prescriptions"—"[o]ne's a lady about sixty years old ... from Britain" who "doesn't know anybody in California," and "the other one ... is just kind of a dumb, dumb person"; defendant refused to "giv[e] up any names until I ask them if they want to be hassled." Weeks later, defendant was arrested.

At trial, defendant testified that he kept the 31 marijuana plants for himself. Defendant denied the truth of his hospital statement concerning the two other persons, whom he continued to refuse to name, claiming that he made the statement under the influence of various medications that he then was receiving. Defendant testified that he anticipated the plants would yield a harvest of about five pounds, which would supply him for a year at his rate of consumption of approximately eight grams a day. Defendant called an expert witness who testified, based on agricultural and other assessments and projections, that the plants probably would yield a harvest of 4.35 pounds, well below the six pounds that he said the federal government supplies yearly to patients in its Investigational New Drug program. The People called an expert witness who testified, based on different agricultural and other assessments and projections, that the plants would yield a harvest of between 31 and 62 pounds.

After the presentation of evidence, the trial court instructed the jury on the crimes of possession and cultivation of marijuana. It also instructed on the section 11362.5(d) defense, based on defendant's claim that he was a qualified patient, without any reference to a qualified primary caregiver.

After deliberations, the jury returned verdicts finding defendant guilty of possession and...