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Name: People v. Mentch
Case #: S148204
Court: CA Supreme Court
District CalSup
Opinion Date: 11/24/2008

The primary caregiver defense is reserved only for a person who can prove he or she consistently provided care, independent of assistance in taking medical marijuana, at or before the time he or she assumed responsibility for assisting with medical marijuana. Growing and supplying the drug for legitimate patients, even combined with sporadic care giving, is insufficient. Appellant had a medical marijuana recommendation, grew marijuana for himself, and sold it to others who also had medical recommendations. He also counseled these people on the cleanest way to use the marijuana and sometimes took some of them to medical appointments. After his conviction for cultivation and possession for sale, he argued on appeal that the court should have instructed the jury on both affirmative defenses of the Compassionate Use Act, i.e., that he was a qualified patient and a primary caregiver. The Supreme Court granted review to address the meaning of primary caregiver defense. It concluded the statutory definition has two parts: (1) the person is designated by the patient (designation clause); and (2) the person has consistently been responsible for the patient’s housing, health or safety (responsibility clause). (Health & Saf. Code, § 11362.5, subd. (e).) The language of the responsibility clause implies a relationship established at or before the onset of marijuana administration that is directed at the basic survival needs of a seriously ill person, not just his pharmaceutical needs. “The possession or cultivation of marijuana for medical purposes cannot serve as the basis for making lawful the possession or cultivation of marijuana for medical purposes; to conclude otherwise would rest the primary caregiver defense on an entirely circular footing.” The evidence here was not sufficient to warrant an instruction on the defense.