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Name: People v. Orlosky
Case #: D064468
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 01/16/2015
Summary

Marijuana collective need not be formed with any particular formalities for the collective cultivation defense (Health & Saf. Code, section 11362.775) to apply. Marijuana collective need not be formed with any particular formalities for the collective cultivation defense (Health & Saf. Code, § 11362.775) to apply. During a search of Orlosky’s rural property, police found marijuana plants, dried marijuana, a digital scale, $2,791 in cash, a shotgun, and a rifle. Orlosky shared the trailer with Jones and both had medical marijuana prescriptions. During Orlosky’s trial for possession of marijuana for sale and cultivation (Health & Saf. Code, §§ 11358, 11359), he and Jones testified that they grew the marijuana for their own consumption. However, the trial court refused Orlosky’s request to instruct the jury on the collective cultivation defense on the basis that the defense did not apply unless a medical marijuana collective had been formed with some indicia of formality. The jury convicted Orlosky of cultivation, but acquitted him of possession for sale. He appealed. Held: Reversed. Section 11362.775, which sets forth the marijuana collective cultivation defense, does not contain a requirement that a marijuana collective be formally created. “Although business formality has been identified as a relevant evidentiary criterion that increases in probative value as the size of the marijuana distribution enterprise increases, it has not been identified as a mandatory requirement that automatically excludes all informal collective cultivation arrangements from the purview of the collective cultivation defense.” (See, e.g., People v. Jackson (2012) 210 Cal.App.4th 525.) Here, there was substantial evidence to support an instruction on the collective cultivation defense. Orlosky and Jones were both qualified patients who were growing the marijuana for themselves, they had both participated in its cultivation, and they did not sell it to outsiders. The error in failing to instruct on the defense was prejudicial.