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Name: People v. Kelly
Case #: B195624
Court: CA Court of Appeal
District 2 DCA
Division: 3
Opinion Date: 05/22/2008
Subsequent History: 8/13/08 rev. granted: S164830

Health and Safety Code section 11362.77, which caps the amount of marijuana a patient may have, unconstitutionally amends the Compassionate Use Act. The Compassionate Use Act (CUA) did not place a cap on how much marijuana a patient may possess or cultivate, but the Legislature subsequently enacted, without voter approval, Health and Safety Code section 11362.77, which places the cap at 8 ounces plus 12 immature plants or 6 mature plants without a specific recommendation that such a quantity does not meet the patient’s needs. Officers searched appellant Kelly’s home and found 12 ounces of marijuana and plants. At Kelly’s trial for cultivation and sale, the prosecutor argued that because Kelly possessed over eight ounces, he was guilty of the offense, relying on section 11362.77. The appellate court reversed the conviction. The prosecutor’s argument was improper because the CUA could only be amended with the voter’s approval. It was therefore prejudicial error to allow the prosecutor to argue that Kelly could be found guilty because he possessed more than eight ounces. Kelly was entitled to a retrial because it was error to admit evidence and argument concerning section 11362.77, which unconstitutionally amends the CUA.