People v. Kelly

• Decision Date: 21 January 2010
• Docket Number: No. S164830.,S164830.
• Citation: 103 Cal. Rptr. 3d 733,47 Cal.4th 1008,222 P.3d 186
• Parties: THE PEOPLE, Plaintiff and Respondent, v. PATRICK K. KELLY, Defendant and Appellant. In re PATRICK K. KELLY on Habeas Corpus.
• Court: California Supreme Court

47 Cal.4th 1008

103 Cal. Rptr. 3d 733

222 P.3d 186

THE PEOPLE, Plaintiff and Respondent, v. PATRICK K. KELLY, Defendant and Appellant In re PATRICK K. KELLY on Habeas Corpus.

No. S164830.

Supreme Court of California.

January 21, 2010.

Gloria C. Cohen and Gerald F. Uelmen, under appointments by the Supreme Court, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Donald E. De Nicola, Deputy State Solicitor General, Lawrence M. Daniels, Ana R. Duarte, Kristofer Jorstad and Michael R. Johnsen, Deputy Attorneys General, for Plaintiff and Respondent.

Robert E. Harris, in pro. per., for Proposition 215 as Amicus Curiae.

OPINION

GEORGE, C. J.

Health and Safety Code section 11362.77,¹ which is part of the Medical Marijuana Program (MMP) (§ 11362.7 et seq.), prescribes a specific amount of marijuana that a "qualified patient" may possess or cultivate. We granted review to determine whether this aspect of section 11362.77 is invalid under California Constitution, article II, section 10, subdivision (c), insofar as it amends, without approval of the electorate, the Compassionate Use Act of 1996 (CUA) (§ 11362.5), an initiative measure adopted by the voters as Proposition 215 in 1996. We conclude, consistently with the decision of the Court of Appeal below (and with the position of both parties in the present litigation), that insofar as section 11362.77 burdens a defense under the CUA to a criminal charge of possessing or cultivating marijuana, it impermissibly amends the CUA and in that respect is invalid under article II, section 10, subdivision (c). We also conclude, consistently with the views of both parties in the present litigation, that the Court of Appeal erred in concluding that section 11362.77 must be severed from the MMP and hence voided.

I.

In 1996, the California electorate approved Proposition 215 and adopted the CUA, which provides: "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." (§ 11362.5 subd. (d).)² By this and related provisions, the CUA provides an affirmative defense to prosecution for the crimes of possession and cultivation. (See generally People v. Mower (2002) 28 Cal.4th 457, 474 [122 Cal.Rptr.2d 326, 49 P.3d 1067] (Mower); People v. Wright (2006) 40 Cal.4th 81, 98 [51 Cal.Rptr.3d 80, 146 P.3d 531] (Wright).) The CUA does not grant immunity from arrest for those crimes, however. So long as the authorities have probable cause to believe that possession or cultivation has occurred, law enforcement officers may arrest a person for either crime regardless of the arrestee's having a physician's recommendation or approval. (Mower, supra, 28 Cal.4th at pp. 467-469.)

Nor does the CUA specify an amount of marijuana that a patient may possess or cultivate; it states instead that the marijuana possessed or cultivated must be for the patient's "personal medical purposes." (§ 11362.5, subd. (d), italics added.) An early decision construed this provision of the CUA as establishing "that the quantity possessed by the patient or the primary caregiver, and the form and manner in which it is possessed, should be reasonably related to the patient's current medical needs." (People v. Trippet (1997) 56 Cal.App.4th 1532, 1549 , italics added (Trippet).)

Despite—or, perhaps, because of—this judicial construction of the CUA, questions persisted for both qualified medical marijuana patients and for law enforcement officers relating to enforcement of and arrest for possession cultivation, and other related marijuana offenses. In 2003, the Legislature found that "reports from across the state have revealed problems and uncertainties in the [CUA] that have impeded the ability of law enforcement officers to enforce its provisions as the voters intended and, therefore, have prevented qualified patients and designated primary caregivers from obtaining the protections afforded by the act." (Stats. 2003, ch. 875, § 1, subd. (a)(2).) In response, the Legislature enacted the MMP (§ 11362.7 et seq.) to "[c]larify the scope of the application of the [CUA] and facilitate the prompt identification of qualified patients and their designated primary caregivers in order to avoid unnecessary arrest and prosecution of these individuals and provide needed guidance to law enforcement officers." (Stats. 2003, ch. 875, § 1, subd. (b)(1), italics added; see also Wright, supra, 40 Cal.4th 81, 93; People v. Mentch (2008) 45 Cal.4th 274, 290 [85 Cal.Rptr.3d 480, 195 P.3d 1061] [the MMP "immunizes from prosecution a range of conduct ancillary to the provision of medical marijuana to qualified patients"].)

Although the MMP did not literally amend the statute that established the CUA (that is, § 11362.5), the MMP did add 18 new code sections that address the general subject matter covered by the CUA. At the heart of the MMP is a voluntary "identification card" scheme that, unlike the CUA—which, as noted, provides only an affirmative defense to a charge of possession or cultivation—provides protection against arrest for those and related crimes. Under the MMP, a person who suffers from a "serious medical condition,"³ and the designated "primary caregiver"⁴ of that person, may register and receive an annually renewable identification card that, in turn, can be shown to a law enforcement officer who otherwise might arrest the program participant or his or her primary caregiver. Section 11362.71, subdivision (e) of the MMP provides in full: "No person or designated primary caregiver in possession of a valid identification card shall be subject to arrest for possession, transportation, delivery, or cultivation of medical marijuana in an amount established pursuant to this article [that is, the 18 new sections comprising the MMP], unless there is reasonable cause to believe that the information contained in the card is false or falsified, the card has been obtained by means of fraud, or the person is otherwise in violation of the provisions of this article." (Italics added.)⁵

The "amount established pursuant to this article" is addressed in section 11362.77, the statute at issue in this case. That section does two things: (1) it establishes quantity limitations, and (2) it sets forth a "safe harbor" by authorizing possession of specific amounts of medical marijuana within those specific limits.⁶

Subdivision (a) of section 11362.77 provides that a "qualified patient"⁷ or primary caregiver may "possess no more than eight ounces of dried marijuana," and may, "[i]n addition, . . . maintain no more than six mature or 12 immature marijuana plants." (Id., subd. (a), italics added.) The next two subdivisions of the same section provide qualified exceptions for even greater amounts. Subdivision (b) specifies that a patient may "possess an amount of marijuana consistent with the patient's needs," on condition that the patient "has a doctor's recommendation" stating that the quantity set out in subdivision (a) is insufficient for the patient's medical needs.⁸ Subdivision (c) specifies that cities or counties may retain or enact guidelines allowing greater quantities than those set out in subdivision (a). These aspects of section 11362.77 evidently were designed to provide an objective, bright-line standard in lieu of the subjective, highly individualized reasonable-amount standard set forth in the CUA as construed by Trippet, supra, 56 Cal.App.4th at page 1549, thereby providing law enforcement officers with uniform standards, and providing patients who meet those standards (and their primary caregivers) with predictability. (See, e.g., Stats. 2003, ch. 875, § 1, subd. (b)(1).)

The MMP's safe harbor provision, subdivision (f) of section 11362.77, authorizes possession of certain amounts of medical marijuana. It provides that a "qualified patient or a person holding a valid identification card, or the designated primary caregiver of that qualified patient or person, may possess amounts of marijuana consistent with this article [that is, as provided in subds. (a)-(c) of § 11362.77]." By its terms, this safe harbor provision, which is not directly implicated on the facts of this case, would apply not only to those who hold MMP identification cards, but also to qualified patients or their primary caregivers—those persons who are entitled to the protections of the CUA but who do not obtain a program identification card that may provide protection against arrest.⁹

As alluded to above and further explained below, subdivision (a) of section 11362.77, by its terms, does not confine its specific quantity limitations to those persons who voluntarily register with the program and obtain identification cards that protect them against arrest. It also restricts individuals who are entitled, under the CUA, to possess or cultivate any quantity of marijuana reasonably necessary for their current medical needs, thereby burdening a defense that might otherwise be advanced by persons protected by the CUA. Moreover, although subdivision (b) of section 11362.77 allows possession of a quantity "consistent with the patient's needs" that is greater than the amount set out in subdivision (a), it affords this protection only if a physician so recommends—a qualification not found in the CUA.

II.

Defendant Patrick K. Kelly has long suffered from, among other ailments, hepatitis C, back problems (including ruptured disks), a fused neck, nausea, fatigue, cirrhosis, loss of appetite, and depression. Over the course of 10 years, defendant attempted to treat the pain caused by these conditions with multiple epidurals, pain therapy, nerve stimulators, and various...