Metropolitan News-Enterprise


Tuesday, November 25, 2008


Page 1


Court Clarifies Medical Marijuana Caregiver Defense


By STEVEN M. ELLIS, Staff Writer


A medical marijuana supplier must have provided patrons some previous, other form of caregiving in order to qualify as a “primary caregiver” immune from prosecution for growing or possessing the drug for sale, the California Supreme Court held yesterday.

Reversing a decision by the Sixth District Court of Appeal, the Supreme Court unanimously ruled that a Santa Cruz County man whose caregiving consisted principally of supplying marijuana and instructing on its use, and who otherwise only sporadically took some patients to medical appointments, was not entitled to a jury instruction on the affirmative defense.

Roger William Mentch was arrested in 2003 and charged with cultivation of marijuana and possession for sale after sheriff’s deputies—acting on a tip from a bank teller who said that Mentch made several cash deposits of more than $2,000 each over a three-month period in small bills smelling strongly of marijuana—found 190 plants, plus other drugs and firearms, during a search of his residence.

Mentch, who had a medical marijuana recommendation for colitis, dysphoria, and depression, said that he smoked about four marijuana cigarettes per day for medicinal purposes, but officers concluded the operation was primarily a for-profit commercial venture after Mentch admitted he sold the drug to five other medical marijuana users.

At trial, Mentch asserted that California’s Compassionate Use Act of 1996—which provides partial immunity for the possession and cultivation of marijuana by qualified patients and their “primary caregivers”—shielded him from prosecution because as he was the other users’ primary caregiver insofar as he had consistently assumed responsibility for their health by providing them medical marijuana upon a doctor’s recommendation or approval.

The act defines a “primary caregiver” as “the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, or safety of that person.”

However, Santa Cruz Superior Court Judge Samuel S. Stevens, despite granting Mentch’s request to instruct the jury that he was partially immune as a qualified patient, declined to instruct the jury on immunity as a primary caregiver after concluding that the evidence was insufficient to show Mentch had provided such services, and the jury convicted Mentch of both charges.

On appeal, the Sixth District—in an opinion by Justice Franklin D. Elia, joined by Presiding Justice Conrad L. Rushing and Justice Eugene M. Premo—reversed, concluding that evidence that Mentch 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, was sufficient to support an instruction on the primary caregiver defense.

But Justice Kathryn Mickle Werdegar wrote for the Supreme Court that Mentch was not entitled to the instruction because he had failed to “satisfy both halves [of the definition]—the ‘designee’ clause and the ‘responsibility’ clause.”

Examining the latter, the justice explained that “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.”

Remarking that Mentch’s evidence failed to demonstrate satisfaction of each of the three aspects, Werdegar concluded that the trial court had ruled correctly because the act “simply does not provide…protection where the provision of marijuana is itself the substance of the relationship.”

She similarly rejected Mentch’s argument that the 2003 enactment of the Medical Marijuana Program—which provides a defense to similar charges for those who give assistance to patients and primary caregivers in administering medical marijuana, and acquiring the skills necessary to cultivate or administer it—immunized his conduct.

“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,’” she wrote. “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.”

Chief Justice Ronald M. George and Justices Carlos R. Moreno, Joyce L. Kennard, Marvin R. Baxter, Ming W. Chin and Carol A. Corrigan joined Werdegar in her opinion.

Chin, joined by Corrigan, also wrote separately to warn of the need to resolve the nature of a defendant’s burden to raise a reasonable doubt regarding the compassionate use defense.

The case is People v. Mentch, 08 S.O.S. 6367.


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