People v. Mower

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.

We granted defendant’s petition for review, subsequently limiting the issue before us to a determination of the meaning and effect of section 11362.5(d).

The initial question that we address in this case is whether section 11362.5(d) grants a defendant “complete” immunity from prosecution, an immunity that assertedly would require reversal of a conviction for possession or cultivation of marijuana whenever law enforcement officers fail to conduct an adequate investigation of the defendant’s status as a qualified patient or primary caregiver prior to his or her arrest. As noted, the Court of Appeal rejected the contention that section 11362.5(d) grants any such “complete” immunity from prosecution.

Proposition 215 added section 11362.5, which provides in its entirety:

“(a) This section shall be known and may be cited as the Compassionate Use Act of 1996.

“(b)(1) The people of the State of California hereby find and declare that the purposes of the Compassionate Use Act of 1996 are as follows:

“(A) 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 cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.

“(B) To ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.

“(C) To encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana.

“(2) Nothing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marijuana for nonmedical purposes.

“(c) Notwithstanding any other provision of law, no physician in this state shall be punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes.

“(d) 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.

“(e) For the purposes of this section, ‘primary caregiver’ means the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, or safety of that person.” (Italics added.)

In his briefing in the Court of Appeal, defendant contended that in addition to allowing a defendant to raise his or her status as a qualified patient or primary caregiver as a defense at trial, section 11362.5(d) grants what defendant characterized as a “complete” immunity from prosecution. In advancing this claim, defendant asserted that section 11362.5 as a whole imposes an obligation on law enforcement officers to “investigate first, arrest later”: Such officers “must determine if a person is cultivating or possesses marijuana,” “if that person represents that he/she is” a qualified patient or primary caregiver, and “how much [marijuana] can be grown or possessed in relation to the actual medical needs of’ the person. Because, in defendant’s view, no such officer conducted an investigation of this kind prior to his arrest, he maintained that the “complete” immunity from prosecution that he assertedly was granted by section 11362.5(d) requires reversal of his convictions.

We agree with the Court of Appeal that section 11362.5(d) does not grant any sort of “complete” immunity from prosecution that would require reversal of defendant’s convictions. To be sure, law enforcement officers must have probable cause before they lawfully may arrest a person for any crime. (See, e.g., People v. Campa (1984) 36 Cal.3d 870 , 879 [ 206 Cal.Rptr. 114 ,

Neither can section 11362.5(d) reasonably be read to grant immunity from arrest by implication. As the proponents of Proposition 215 declared in their rebuttal to the argument of the measure’s opponents: “Police officers can still arrest anyone for marijuana offenses.” (Ballot Pamp., Gen. Elec. (Nov. 5, 1996) rebuttal to argument against Prop. 215, p. 61.) Even when law enforcement officers believe that a person who “possesses or cultivates marijuana” is a “patient” or “primary caregiver” acting on the “recommendation or approval of a physician,” they may—as in this case—have reason to believe that that person does not possess or cultivate the substance “for the personal medical purposes of the patient” (§ 11362'5(d)).

Thus, we conclude that section 11362.5(d) does not grant any immunity from arrest, and certainly no immunity that would require reversal of a conviction because of any alleged failure on the part of law enforcement officers to conduct an adequate investigation prior to arrest.

The conclusion that section 11362.5(d) does not grant a defendant the type of “complete” immunity from prosecution urged by defendant below, however, does not signify that the provision does not grant any immunity from prosecution at all.

Certain statutory provisions have been recognized as granting defendants limited immunity from prosecution. (See generally People v. Backus (1979) 23 Cal.3d 360 , 381 [ 152 Cal.Rptr. 710 , 590 P.2d 837 ]; People v. King (1967) 66 Cal.2d 633 , 645 [ 58 Cal.Rptr. 571 , 427 P.2d 171 ].)

One example of a grant of limited immunity from prosecution is found in subdivision (n) of section 602 of the Penal Code (hereafter Penal Code

As is indicated by the text of section 11362.5, quoted above, the purpose informing section 11362.5(d) is twofold: (1) “[t]o 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 . . . any . . . illness for which marijuana provides relief’ (§ 11362.5, subd. (b)(1)(A)); and (2) “[t]o ensure that patients and their primary caregivers who obtain and use marijuana for

We believe that just as a grant of limited immunity from prosecution is found in Penal Code section 602(n), which makes it a crime to trespass on another’s property and then provides that its terms “shall not be applicable to persons engaged in lawful labor union activities” (italics added; see In re Catalano, supra, 29 Cal.3d at p. 12, fn. 12), and just as a grant of limited immunity from prosecution is seen in Insurance Code section 12924(b), which provides that, as a general matter, “no individual shall be prosecuted or be subjected to punishment for” any crime “concerning which he [or she] is . . . compelled” by the Insurance Commissioner “to testify or produce” other evidence (italics added; see People v. King, supra, 66 Cal.2d at p. 637), a grant of limited immunity from prosecution also must properly be found in section 11362.5(d), which provides that sections 11357 and 11358 “shall not apply to” qualified patients and primary caregivers (§ 11362.5(d)), particularly in view of its purpose of prohibiting “criminal prosecution [and] sanction” of such qualified patients and primary caregivers for such crimes (§ 11362.5, subd. (b)(1)(B)).

It is evident that section 11362.5(d)’s grant of limited immunity from prosecution does not operate, as does that of Insurance Code section 12924(b), for reasons extrinsic to the criminality of the underlying conduct. Rather, it operates, in the manner of Penal Code section 602(n), to render noncriminal certain conduct that otherwise would be criminal.

We have held that the prohibition against criminal “prosecution]” and criminal “punishment” found in Insurance Code section 12924(b) “cannot be given its proper effect unless it ... is recognized as a proper basis for” setting aside an indictment or information. {People v. King, supra, 66 Cal.2d at p. 645.) Otherwise, a criminal prosecution hardly could be said to be subject to prohibition at all, but simply could proceed unimpeded to whatever its resolution might be.

By parity of reasoning, we now hold that the prohibition against “criminal prosecution” as well as “criminal. . . sanction” (§ 11362.5, subd. (b)(1)(B)) that is implicit in section 11362.5(d) cannot be given its proper effect unless it too is recognized as a proper basis for setting aside an indictment or information.

Proposition 215’s ballot pamphlet materials do not speak directly to the issue whether section 11362.5(d) permits a motion to set aside an indictment or information prior to trial. But they say nothing to the contrary. That the

Furthermore, ballot pamphlet materials for Proposition 215 expressly acknowledge that section 11362.5(d) allows a defense at trial. In rebuttal to the argument by opponents of Proposition 215 that section 11362.5(d) “will provide new legal loopholes for drug dealers to avoid arrest and prosecution” (Ballot Pamp., Gen. Elec., supra, argument against Prop. 215, p. 61), the measure’s proponents stated: “Police officers can still arrest anyone for marijuana offenses,” including possession and cultivation of the substance in violation of sections 11357 and 11358. (Ballot Pamp., Gen. Elec., supra, rebuttal to argument against Prop. 215, p. 61.) “Police officers can still arrest anyone who grows too much [marijuana], or tries to sell it.” (Ibid) Section 11362.5(d) “simply gives those arrested” for possession or cultivation of marijuana “a defense in court, if they can prove” their status as qualified patients or primary caregivers. (Ballot Pamp., Gen. Elec., supra, rebuttal to argument against Prop. 215, p. 61, italics omitted.) Accordingly, section 11362.5(d) “would . . . protect” such persons “from criminal penalties for” possession or cultivation of marijuana. (Ballot Pamp., Gen. Elec., supra, argument in favor of Prop. 215, p. 60.)

A

Defendant contends that the Court of Appeal erred by rejecting his claim that the trial court improperly failed to instruct the jury on a section 11362.5(d) defense based on a theory that he was a qualified primary caregiver. We disagree.

As the Court of Appeal determined, such an instruction would not have been supported by substantial evidence. 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.” (§ 11362.5, subd. (e).) The sole evidence relevant to this issue was the statement made by defendant at the hospital, the truth of which he denied at trial, that he kept the 31 marijuana plants not only for himself but also for two other unnamed persons. Even if these two unnamed persons were in fact qualified patients, there was no evidence whatsoever that defendant had been designated by either one as a primary caregiver, or that he consistently had assumed responsibility for either person’s housing, health, or safety.

B

Defendant next raises a question concerning the allocation and weight of the burden of proof under the defense provided by section 11362.5(d), and the propriety of the trial court’s related instruction.

In its charge to the jury, the trial court instructed that defendant bore the burden of proof as to the facts underlying this defense, and that he was required to prove those facts by a preponderance of the evidence.

1

We begin our analysis of the question of the allocation and weight of the burden of proof under the defense provided by section 11362.5(d) with the observation that the question involves two related but distinct issues.

The first issue is which party, the People or the defendant, bears the burden of proof as to the facts underlying the defense. Evidence Code section 115 defines “burden of proof’ as “the obligation of a party to establish by evidence a requisite degree of belief concerning a fact in the mind of the trier of fact or the court.”

The second issue is what is required to be done by the party who bears the burden of proof as to the facts underlying the defense, whether that party is the People or the defendant. Evidence Code section 115 provides that “[t]he burden of proof may require a party to raise a reasonable doubt concerning the existence or nonexistence of a fact or that he establish the existence or nonexistence of a fact by a preponderance of the evidence, by clear and convincing proof, or by proof beyond a reasonable doubt. . . .”

With regard to the first issue—whether it is the People or the defendant who bears the burden of proof as to the facts underlying the defense—the

The rule of convenience and necessity declares that, unless it is “unduly harsh or unfair,” the “burden of proving an exonerating fact may be imposed on a defendant if its existence is ‘peculiarly’ within his personal knowledge and proof of its nonexistence by the prosecution would be relatively difficult or inconvenient.” (In re Andre R., supra, 158 Cal.App.3d at p. 342; accord, e.g., People v. Agnew, supra, 16 Cal.2d at pp. 663-667.) The rule often has been invoked when the “exonerating fact” arises from an exception to a criminal statute. (See, e.g., In re Andre R., supra, 158 Cal.App.3d at pp. 341-342, citing cases; see also Model Pen. Code & Commentaries, com. 3 to § 1.12, p. 192; id., pp. 192-193, fn. 16.)

Application of the rule of convenience and necessity supports the conclusion that section 11362.5(d) should be interpreted to allocate to the defendant the burden of proof as to the facts underlying the defense provided by the statute.

First, it would not be unduly harsh or unfair to allocate to the defendant the burden of proving the facts underlying this defense. These facts are that he or she was a “patient” or “primary caregiver,” that he or she “possessed]” or “cultivated]” the “marijuana” in question “for the personal medical purposes of [a] patient,” and that he or she did so on the “recommendation or approval of a physician” (§ 11362.5(d)). The existence of these facts is peculiarly within a defendant’s personal knowledge, and proof of their nonexistence by the prosecution would be relatively difficult or inconvenient.

Second, section 11362.5(d) constitutes an exception to sections 11357 and 11358, which make it a crime to possess and cultivate marijuana, because section 11362.5(d) provides that sections 11357 and 11358 “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” (§ 11362.5(d), italics added).

With regard to the second issue—what is required to be done by the party who bears the burden of proof as to the facts underlying this defense, whom we have determined to be the defendant—the answer again is not provided by the statute itself, inasmuch as it does not expressly define the weight of the burden of proof. But neither is the answer afforded by the rule of convenience and necessity. Although the People rightly claim that the rule of convenience and necessity is “consistent” with requiring the defendant to prove the underlying facts by a preponderance of the evidence (see People v. Spry (1997) 58 Cal.App.4th 1345 , 1367-1369 [ 68 Cal.Rptr.2d 691 ], disapproved on another point by People v. Martin (2001) 25 Cal.4th 1180 , 1192 [ 108 Cal.Rptr.2d 599 , 25 P.3d 1081 ]), the rule is just as consistent with requiring the defendant merely to raise a reasonable doubt (see People v. Agnew, supra, 16 Cal.2d at pp. 663-667; 5 Witkin & Epstein, Cal. Criminal Law, supra, Criminal Trial, § 525, p. 749; see also Model Pen. Code, § 1.12, subds. (2)(a), (3)(c)). To resolve this issue, we accordingly must look elsewhere.

We begin with Evidence Code section 501. That provision states: “Insofar as any statute, except [Evidence Code] Section 522, assigns the burden of proof in a criminal action, such statute is subject to Penal Code Section 1096.” (Evid. Code, § 501.) Penal Code section 1096 requires the People to prove the facts establishing a defendant’s guilt beyond a reasonable doubt. In contrast, Evidence Code section 522 requires a defendant to prove the facts underlying a defense of insanity by a preponderance of the evidence.

The comment to Evidence Code section 501 by the California Law Revision Commission, which proposed that provision, states in pertinent

As a result of the enactment of section 11362.5(d), the possession and cultivation of marijuana is no more criminal—so long as its conditions are satisfied—than the possession and acquisition of any prescription drug with a physician’s prescription. Inasmuch as this statute provides that sections 11357 and 11358, which criminalize the possession and 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” (§ 11362.5(d)), the provision renders possession and cultivation of marijuana noncriminal under the conditions specified.

In sum, the defense provided by section 11362.5(d) relates to the defendant’s guilt or innocence, because it relates to an element of the crime of possession or cultivation of marijuana. Thus, this defense negates the element of the possession or cultivation of marijuana to the extent that the element requires that such possession or cultivation be unlawful.

Proposition 215’s ballot pamphlet materials do not dictate a contrary conclusion. It is true that the proponents of Proposition 215 stated (in their rebuttal to the argument by the measure’s opponents) that section 11362.5(d) “gives ... a defense in court” to qualified patients and primary caregivers “if they can prove” its underlying facts. (Ballot Pamp., Gen. Elec., supra, rebuttal to argument against Prop. 215, p. 61, some italics omitted.) But, as

Against this conclusion, the People argue that the defense provided by section 11362.5(d) is collateral to a defendant’s guilt or innocence. But, as explained, within its scope section 11362.5(d) renders possession and cultivation of marijuana noncriminal. Contrary to the People’s implication, the statutory defense simply cannot be likened to a defense such as entrapment, which is “not based on the defendant’s innocence” in any way (People v. Moran, supra, 1 Cal.3d at p. 760).

We note that People v. Trippet, supra, 56 Cal.App.4th at pages 1543-1551, People ex rel. Lungren v. Peron, supra, 59 Cal.App.4th at pages 1388-1400, and People v. Rigo, supra, 69 Cal.App.4th at pages 412-415, which recognize the defense provided by section 11362.5(d), do not address the issue of the allocation and weight of the burden of proof. CALJIC No. 12.24.1 (1999 rev.) (6th ed. 1996) does indeed state that a defendant bears the burden of proof as to the underlying facts by a preponderance of the evidence. All that is cited in support of this pattern instruction is section 11362.5 and Trippet. (Com. to CALJIC No. 12.24.1 (1999 rev.) (6th ed. 1996) pp. 15-16.) Section 11362.5 provides no support. Trippet asserts in dictum that “the burden is, of course, on the defendant to raise the defense and prove its elements.” (See People v. Trippet, supra, 56 Cal.App.4th at p. 1551, fn. 17.) But, as explained, Evidence Code section 115 allows a defendant to “prove” the “elements” of a given defense merely by raising a reasonable doubt as to their existence or nonexistence.

2

We next address defendant’s contention that the trial court’s instruction on the defense provided by section 11362.5(d), which required him to prove the underlying facts by a preponderance of the evidence, amounted to reversible error.

A trial court must instruct the jury on the allocation and weight of the burden of proof (Evid. Code, § 502; People v. Simon, supra, 9 Cal.4th at p. 501 [citing Evid. Code, § 502]; People v. Figueroa, supra, 41 Cal.3d at p. 721 [same]), and, of course, must do so correctly. It must give such an instruction even in the absence of a request (see People v. Simon, supra, 9 Cal.4th at p. 501), inasmuch as the allocation and weight of the burden of

Because, as we have concluded, defendant was required merely to raise a reasonable doubt as to the facts underlying the defense in question, the trial court erred by instructing the jury that he was required to prove those facts by a preponderance of the evidence.

If a trial court’s instructional error violates the United States Constitution, the standard stated in Chapman v. California (1967) 386 U.S. 18 , 24 [ 87 S.Ct. 824 , 828, 17 L.Ed.2d 705 , 24 A.L.R.3d 1065 ], requires the People, in order to avoid reversal of the judgment, to “prove beyond a reasonable doubt that the error . . . did not contribute to the verdict obtained.” (See People v. Simon, supra, 9 Cal.4th at p. 506, fn. 11.) But if a trial court’s instructional error violates only California law, the standard is that stated in People v. Watson (1956) 46 Cal.2d 818 , 836 [ 299 P.2d 243 ], which permits the People to avoid reversal unless “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (See People v. Simon, supra, 9 Cal.4th at p. 506, fn. 11.)

We have left open the question whether an instructional error like that committed by the trial court in the present case is of federal constitutional dimension or only of state law import (People v. Simon, supra, 9 Cal.4th at p. 506, fn. 11) and need not resolve this question here, because the error requires reversal even under the less rigorous Watson standard.

There is a reasonable probability of a more favorable result within the meaning of Watson when there exists “at least such an equal balance of reasonable probabilities as to leave the court in serious doubt as to whether the error affected the result.” (People v. Watson, supra, 46 Cal.2d at p. 837.)

Such an equal balance of reasonable probabilities exists in the present case. Defendant unquestionably was a patient—an “extremely” ill patient who suffered from “diabetes and all its complications.” Furthermore, defendant unquestionably possessed and cultivated marijuana on the recommendation of a physician, who advised him to use the substance. What could be questioned, however, was whether defendant possessed and cultivated the marijuana in question entirely for his own personal medical purposes. Had the jury properly been instructed that defendant was required merely to raise a reasonable doubt about his purposes instead of proving such purposes by a