People v. Mentch

• Decision Date: 24 November 2008
• Docket Number: No. S148204.,S148204.
• Citation: 45 Cal. 4th 274,195 P.3d 1061,85 Cal.Rptr.3d 480
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Roger William MENTCH, Defendant and Appellant.

195 P.3d 1061

85 Cal.Rptr.3d 480

45 Cal. 4th 274

The PEOPLE, Plaintiff and Respondent, v. Roger William MENTCH, Defendant and Appellant.

No. S148204.

Supreme Court of California.

November 24, 2008.

Lawrence A. Gibbs, Berkeley, under appointment by the Supreme Court, and Joseph M. Bochner, under appointment by the Court of Appeal, for Defendant and Appellant.

Drug Policy Alliance, Daniel Abrahamson, Tamar Todd and Theshia Naidoo for Marcus A. Conant, Robert J. Melamede and Gerald F. Uelmen as Amici Curiae on behalf of Defendant and Appellant.

Joseph D. Elford for Americans for Safe Access as Amicus Curiae on behalf of Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Donald E. de Nicola, Deputy State Solicitor General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Gerald A. Engler, Assistant Attorney General, Moona Nandi, Laurence K. Sullivan and Michele J. Swanson, Deputy Attorneys General, for Plaintiff and Respondent.

WERDEGAR, J.

The Compassionate Use Act of 1996 (Act) (Health & Saf.Code, § 11362.5, added by voter initiative, Prop. 215, Gen. Elec. (Nov. 5, 1996)) provides partial immunity for the possession and cultivation of marijuana to two groups of people: qualified medical marijuana patients and their primary caregivers. We consider here who may qualify as a primary caregiver. We hold that a defendant whose caregiving consisted principally of supplying marijuana and instructing on its use, and who otherwise only sporadically took some patients to medical appointments, cannot qualify as a primary caregiver under the Act and was not entitled to an instruction on the primary caregiver affirmative defense. We further conclude that nothing in the Legislature's subsequent 2003 Medical Marijuana Program (Health & Saf.Code, § 11362.7 et seq.) alters this conclusion or offers any additional defense on this record. Accordingly, we reverse the Court of Appeal.

FACTUAL AND PROCEDURAL BACKGROUND

In 2003, Roger Mentch was arrested and charged with the cultivation of marijuana (Health & Saf.Code, § 11358)¹ and its possession for sale (§ 11359).²

Prosecution Evidence

Heidi Roth, a teller at Monterey Bay Bank, testified that she became familiar with Mentch over the period of February to April 2003. Mentch came to the bank on several occasions and made large deposits of cash in small bills, each deposit totaling over $2,000. Roth noticed that some of the money Mentch deposited smelled so strongly of marijuana that the smell filled the bank, and the bank had to remove the money from circulation. The total amount Mentch deposited with the bank over a two-month period was $10,750. On April 15, 2003, Roth filed a suspicious activity report with the Santa Cruz County Sheriff's Office, relating the questionable nature of Mentch's deposits.

After further investigation, the sheriff's office obtained a warrant to search Mentch's house for marijuana. On June 6, 2003, Mark Yanez, a narcotics investigator, and four deputies went to Mentch's house to serve the warrant. When Mentch opened the door, Yanez told him they had a warrant to search his house for marijuana. Mentch told Yanez that he had a medical recommendation for marijuana. A search of Mentch's person turned up $253 in cash and a small vial of hash oil, or concentrated cannabis. Yanez advised Mentch of his rights and interviewed him in a police vehicle parked outside Mentch's residence.

Mentch told Yanez he had a medical marijuana recommendation for colitis, dysphoria, and depression, and that he smoked about four marijuana cigarettes, totaling approximately one-sixteenth of an ounce, per day for medicinal purposes. When Yanez asked Mentch if he sold marijuana, Mentch responded that he sold it to five medical marijuana users.

A search of Mentch's residence revealed several elaborate marijuana growing setups. In various rooms of the house, the deputies found 82 marijuana plants in the flowering or budding stage, 57 "clone" marijuana plants, 48 marijuana plants in the growing or vegetative stage, and three "mother" plants, which Yanez opined were likely the female plants from which clippings were taken to make the clone plants. Considering the evidence seized from Mentch's bank and residence, as well as his statement to Yanez, Yanez opined that while Mentch may have personally consumed some of the marijuana he grew, his operation was primarily a for-profit commercial venture.

Defense Evidence

Leland Besson testified that he had known Mentch for two years. In June 2003, Besson was on disability and had a medical marijuana recommendation for a bad back, neck, and joints. At the time, he was smoking approximately two to three grams of marijuana a day. For about one year before Mentch was arrested, Besson purchased his marijuana exclusively from Mentch, who knew about Besson's medical marijuana recommendation. Mentch supplied medical marijuana through his business, the Hemporium. Besson gave Mentch $150 to $200 in cash every month for one and one-half ounces of marijuana, the amount Besson usually consumed in a month.

Laura Eldridge testified she had known Mentch for about three years. In June 2003, she was working as a caretaker for Besson, cooking and cleaning for him, driving him to the grocery store, and driving him to medical appointments and to pick up his medications. Eldridge also drove Besson to Mentch's house to get him his marijuana. The only time Besson saw Mentch was when Eldridge took him to Mentch's house to get marijuana.

At the time, Eldridge herself had a medical marijuana recommendation for migraine headaches and posttraumatic stress disorder. She was smoking about five or six marijuana cigarettes a day and consuming about one ounce of marijuana a month. Eldridge obtained marijuana exclusively from Mentch for approximately one and one-half years before his arrest. Mentch provided the marijuana through his medical marijuana business, the Hemporium. Eldridge obtained the marijuana from Mentch every month, paying him $200 to $250 in cash for one ounce and $25 in cash for one-eighth of an ounce if she needed more.

Eldridge was at Mentch's house getting her daughter ready for school on the morning of Mentch's arrest. At the time, she and Mentch were not living together but were seeing each other romantically, and Eldridge had stayed over at Mentch's house the night before the search warrant was served.

Mentch took the stand in his own defense. In 2002, he obtained a medical marijuana recommendation and began growing marijuana. He learned how to grow marijuana from reading books, searching the Internet, and talking to people. He kept marijuana plants in all three stages of growth so that he was in a constant cycle of marijuana production, which produced a yield of four harvests a year. Mentch's medical marijuana recommendation was still current on the day the police searched his home. At that time, he smoked four to six marijuana cigarettes a day (approximately one-sixteenth of an ounce) and consumed between one and one-half to two ounces of marijuana a month.

Mentch opened the Hemporium, a caregiving and consultancy business, in March 2003. The purpose of the Hemporium was to give people safe access to medical marijuana. Mentch regularly provided marijuana to five other individuals, including Besson, Eldridge, and a man named Mike Manstock. Sometimes he did not charge them. All five individuals had valid medical marijuana recommendations. Mentch did not provide marijuana to anyone who did not have a medical marijuana recommendation. Occasionally, he took any extra marijuana he had to two different cannabis clubs, The Third Floor and another unnamed place. Although a majority of the marijuana plants in Mentch's home belonged to him, some belonged to Manstock. In addition, Mentch let Besson and Eldridge grow one or two plants.

Mentch provided marijuana to Besson about once every month and to Eldridge about once or twice every month. On average, they each gave him $150 to $200 for an ounce and a half of marijuana a month. Mentch considered his marijuana "high-grade" and provided it to Besson and Eldridge for less than street value. He used the money they paid him to pay for "nutrients, utilities, part of the rent." Mentch did not profit from his sales of marijuana, and sometimes he did not even recover his costs of growing it. Mentch counseled his patients/customers about the best strains of marijuana to grow for their ailments and the cleanest way to use the marijuana. He took a "couple of them" to medical appointments on a "sporadic" basis.

Although Mentch asked all five patients to come to court and testify on his behalf, only Besson and Eldridge showed up. He did not subpoena the others because one of them was out of state, another did not want to be involved because his father was an attorney, and the third did not want to testify.

The Primary Caregiver Defense

Before trial, the prosecutor filed a motion in limine to exclude any references by counsel during voir dire, testimony, or closing argument to Mentch's being a "primary caregiver" for Eldridge or Besson.³ The prosecutor asserted that Eldridge and Besson could testify to any care Mentch had provided them, but argued that the ultimate determination whether Mentch was a primary caregiver rested with the jury. The trial court granted the motion.

After Eldridge and Besson testified, the court concluded the evidence was insufficient to show that Mentch had provided primary caregiver services. Mentch argued in a brief to the court that a person could qualify as a patient's primary caregiver whenever he or she consistently assumed responsibility for a patient's health by providing medical marijuana upon a doctor's recommendation or approval. The trial court rejected the argument.

During the subsequent discussion of jury instructions after the close of evidence, Mentch requested the standard jury instruction for...