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Name: People v. Windus
Case #: B196483
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 07/30/2008

Reversal was required where appellant should have been permitted to present his defense under the Compassionate Use Act. Prior to his trial for possession for sale of marijuana, appellant claimed he was entitled to present a defense under the Compassionate Use Act (CUA) because he was a qualified patient and a primary caregiver within the meaning of the statute. The trial court excluded the evidence, and appellant pleaded guilty. On appeal, appellant contended that the trial court erred when it ruled he was required to present evidence that he had a recommendation from a doctor approving the possession of more than eight ounces of marijuana. He argued that his doctor’s testimony had provided sufficient evidence that the amount he possessed was consistent with his medical needs. The appellate court agreed and reversed the conviction. Nothing in the CUA requires a patient to renew his doctor’s recommendation. Because appellant’s doctor recommended that he see him annually, appellant’s failure to do so did not invalidate the doctor’s recommendation. Nothing in the CUA or case law supports the view that a medical recommendation has to specify the amount required for the patient’s medical needs. The CUA defense requires only that one possess or cultivate marijuana for his personal medical purposes pursuant to a recommendation from a doctor. Here, appellant had the recommendation and should have been allowed to present his defense to the jury. [Editor’s note: Reminder that although this was a plea situation, it appears that the issue was able to be raised on appeal due to a DeVaughn agreement with the court (i.e., as part of the terms of the plea stating appellant’s right to appeal the issue). Otherwise, a certificate of probable cause cannot render an otherwise nonappealable issue waived by the plea to be cognizable on appeal. We surmise that appellant’s success on appeal may have been partly attributable to trial counsel’s awareness to wrap in a DeVaughn agreement with the plea here.]