Metropolitan News-Enterprise


Friday, April 22, 2005


Page 1


C.A. Rules Standard Instruction on ‘Compassionate Use’ Is Proper

Court Says Defendant Citing Medical Marijuana Law Must ‘Raise a Reasonable Doubt’ About Guilt


By DAVID WATSON, Staff Writer


A standard instruction informing jurors that a defense to a marijuana possession charge under California’s compassionate use law requires the defendant to “raise a reasonable doubt” as to his or her guilt does not improperly shift the burden of proof, the Third District Court of Appeal ruled yesterday.

Justice Ronald Robie said the instruction given by Tehama Superior Court Judge Dennis E. Murray, CALJIC 12.24.1, was proper. It tells jurors that “[t]o establish the defense of compassionate use, the burden is upon the defendant to raise a reasonable doubt as to guilt of the unlawful possession or cultivation of marijuana.”

Murray gave the instruction in the prosecution of Brice Alton Frazier, who was convicted of cultivation of marijuana, possession of marijuana for sale, possession of methamphetamine, and firearms offenses after detectives raided his ranch. Frazier produced a doctor’s recommendation that he use marijuana to treat his chronic hepatitis, and presented evidence that he was also growing marijuana for his wife, stepson and ex-sister-in-law, all of whom had recommendations from the same physician.

Frazier’s caretaker testified that he had seen Frazier take money for marijuana and that Frazier had told him of selling the drug in the Bay Area for $3,000 to $4,000 a pound. Frazier’s stepson testified that he did not know whether Frazier sold marijuana, but prosecutors presented evidence of an earlier interview with police in which the stepson said the defendant told him he did so.

After Frazier was convicted, Murray sentenced him to 10 years in prison.

Robie rejected Frazier’s argument that the jury instruction improperly suggested to jurors that the defendant had to prove his innocence.

The justice wrote:

“Defendant claims his only burden under the Compassionate Use Act is to raise the issue of his compassionate use and then the burden remains with the prosecution to prove beyond a reasonable doubt that he has no defense of compassionate use. He is wrong.”

Robie said Frazier’s argument was foreclosed by the state Supreme Court’s decision in People v. Mower (2002) 28 Cal.4th 457.

High Court’s Ruling

The court in Mower, Robie said, “pointed out that the most closely aligned affirmative defenses to the compassionate use defense are those of possession of a dangerous drug with a prescription, the defense of lawful acquisition of a hypodermic needle as to a charge of unlawful possession of that item, and the defense of prescribing narcotics to an addict under lawful conditions....In each of these three defenses, the defense negates the ‘unlawful’ element involved in the possession or prescription....By parallel reasoning, the Mower court concluded the compassionate use defense negates the ‘unlawful’ element of possessing or cultivating marijuana....As a result, the defendant has the burden of proof to raise a reasonable doubt as to the facts underlying this defense.”

Robie went on to reject Frazier’s contention that the phrase “raise a reasonable doubt” has a technical legal meaning which was likely to be misunderstood by jurors.

“Contrary to defendant’s argument,” he explained, “there is no highly technical meaning in the phrase ‘raise a reasonable doubt’ beyond the terms ‘reasonable doubt.’”

‘Abiding Conviction’

The latter phrase, the justice said, was adequately explained to jurors “pursuant to the time-tested CALJIC No. 2.90,” which describes reasonable doubt in part as “that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction in the truth of the charge.”

Robie added:

“Applied here, the instructions properly informed the jurors that they could not convict defendant of possession or cultivation of marijuana if they concluded that they could not say they felt an abiding conviction defendant unlawfully possessed or cultivated it because of the Compassionate Use Act defense.”

The justice said Murray also properly advised jurors of the meaning of the term “primary caregiver” by telling them that it referred to “an individual designated by the person exempted” under the compassionate use law “who has consistently assumed the responsibility for the housing, health or safety of that person.” The compassionate use statute makes the defense applicable to both patients and their primary caregivers.

That definition, Robie said, closely tracked the statutory language and was “comprised of words commonly understood by those familiar with the English language.” He continued:

“Those words are not used in a technical sense peculiar to the law.”

Nor, the justice reasoned, did Murray err in instructing jurors that they should consider whether the amount of marijuana the defendant possessed was “reasonably related to the patient’s current medical needs” when assessing the compassionate use defense. That language is taken from People v. Trippet (1997) 56 Cal.App.4th 1532.

Trippet was not, as Frazier argued, implicitly overruled by Mower, Robie said.

Frazier cited a passage from Mower in which the high court suggested jurors evaluating a compassionate use defense should focus on “whether a defendant possessed and cultivated the marijuana in question entirely for his own personal medical purposes.”

“There is nothing inconsistent between these two phrases,” Robie asserted. “The definition provided by Trippet simply provides further illumination on the statutory language contained in [Health and Safety Code] section 11362.5 subdivision (d). Nothing in Mower is inconsistent with that language.”

Justices Harry Hull and M. Kathleen Butz concurred. The case is People v. Frazier, 05 S.O.S. 1951.


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