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Name: People v. Archer
Case #: D052978
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 11/17/2009
Subsequent History: grant & transfer 3/10/10 S179076
Summary

A defense to cultivation of marijuana that appellant growing it is a “primary caregiver” is not limited by the amount of marijuana allowed but appellant must provide evidence of the “primary caregiver” status. Appellant was convicted of cultivation of marijuana and possession of marijuana. At trial, the court instructed that a qualified caregiver may possess no more than eight ounces of dried marijuana per patient and may maintain no more than six mature or twelve immature plants per patient. The court agreed with appellant that this instruction, as derived from Health and Safety Code section 11362.77, subdivision (a), was error because section 11362.77 setting the limits of marijuana, unconstitutionally amends the Compassionate Use Act (CUA). The California Constitution prohibits the Legislature from amending an initiative measure, as it did here, unless the initiative measure, itself, allows it. The CUA does not authorize legislative amendment without voter approval. (The issue is presently pending in the California Supreme Court in People v. Kelly (S164830) review granted 8/13/08, People v. Wood (S164211) rev. granted 8/13/08, and People v. Phomphakdy (S166565) review granted 10/28/08.) Here, however, the error was harmless as to the cultivation conviction as appellant did not establish that he qualified as a “primary caregiver” within the meaning of the CUA. It was prejudicial as to the possession charge, however, as the record supported appellant’s claim that the amount of marijuana, without the limitation, was for his own personal medical use.