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Name: People v. Mulcrevy
Case #: C075885
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 01/15/2015

Concentrated cannabis is “marijuana” for purposes of a Compassionate Use Act defense. During a probation search, officers found concentrated cannabis and marijuana buds in Mulcrevy’s pocket. He was charged with unlawful possession of concentrated cannabis (Health & Saf. Code, § 11357, subd. (a)) and was alleged to have violated his probation by failing to obey all laws. At trial, Mulcrevy testified that he had a physician’s prescription to use medical marijuana and therefore, under the Compassionate Use Act (CUA), he was obeying all laws and had not violated his probation. The trial court disagreed, reasoning that concentrated cannabis did not qualify as marijuana under the CUA and therefore the CUA’s affirmative defense to unlawful possession of marijuana was inapplicable. Mulcrevy appealed. Held: Reversed. Criminal defendants have a due process right to be afforded a meaningful opportunity to present a defense. Here, the trial court erred in precluding Mulcrevy’s CUA defense because concentrated cannabis is covered by the CUA. Although the CUA does not define “marijuana,” other statutes in existence at the time the CUA was enacted do. (See Health & Saf. Code, §§ 11018, 11006.5.) Those statutes provide that “marijuana” includes the resin extracted from the plant and that “concentrated cannabis” is that resin. Thus, “concentrated cannabis” is “marijuana” for purposes of the CUA and the trial court erred by concluding otherwise. This conclusion to consistent with an Attorney General opinion (86 Ops.Cal.Atty.Gen. 180 (2003)) and CALCRIM No. 2377. The error violated Mulcrevy’s right to present a defense and was not harmless. There was insufficient evidence that Mulcrevy violated his probation.