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Name: People v. Anderson
Case #: F066737
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 01/09/2015

Trial court erred by failing to instruct that the marijuana collective cultivation defense (Health & Saf. Code, § 11362.775) may apply when medical marijuana is provided to members who do not participate in the cultivation process in exchange for money. Detectives found 187 marijuana plants, marijuana cigarettes, concentrated cannabis, and 25 small bags of dried marijuana buds on Anderson’s property. He was charged with cultivation (§ 11358), possession for sale (§ 11359), and possession of concentrated cannabis (§ 11357, subd. (a)). At trial, Anderson presented evidence that he was in the process of forming a medical marijuana collective when he was arrested and that he planned to provide medical marijuana to other members. The trial court instructed the jury on the collective cultivation defense set forth in section 11362.775, but its instructions did not clarify whether the defense was available to a defendant who provided marijuana to collective members, who did not themselves participate in the cultivation of the marijuana, in exchange for money. The prosecutor argued during closing that the defense did not apply in these circumstances. The jury convicted Anderson of cultivation (§ 11358), found him not guilty of possessing concentrated cannabis, and hung on the count of possession for sale. Anderson appealed, arguing that the trial court had failed to clearly instruct the jury on the parameters of the collective cultivation defense. Held: Reversed. Agreeing with other districts that have considered the issue, the Court of Appeal held that the collective cultivation defense is available to a defendant who provides medical marijuana to other collective members, who did not participate in the cultivation, in exchange for money to reimburse growing costs. (See, e.g., People v. Colvin (2012) 203 Cal.App.4th 1029; People v. Jackson (2012) 210 Cal.App.4th 525.) The trial court’s failure to instruct on this point amounted to prejudicial error.