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Name: People v. Mower
Case #: F030690
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 12/06/2000
Subsequent History: Review Granted March 14, 2001 (S094490)

In this marijuana possession and cultivation case, the appellate court held it was not error for the trial court to fail to instruct, sua sponte, on the primary caregiver defense, because the defense was not supported by substantial evidence. While a trial court has the power to instruct a jury on its power to return a special verdict, it is inappropriate to so instruct the jury when there is little doubt as to the legal effect of the facts found. Here, if the jury found appellant was growing marijuana for his own personal use, the jury would have found that he was not subject to Health and Safety Code sections 11357 or 11358 for cultivation and possession of marijuana. Relying on principles of statutory construction, the Fifth District held that the Compassionate Use Act, Health and Safety Code section 11356.5, creates an affirmative defense, not complete immunity, for the cultivation and/or possession of marijuana by the patient or the patient’s primary caregiver, for the medical treatment of pain pursuant to the written or oral recommendation of a physician.