IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, Respondent, MYRON CARLYLE MOWER, Appellant,

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1 Legal Brief Bank PEOPLE V. MOWER II IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, Respondent, MYRON CARLYLE MOWER, Appellant, California Supreme Court No.S Appeal from the Judgment of the Superior Court of 'Iuolumne County, Hon. Eric L. Du Temple, Judge APPELLANT'S OPENING BRIEF Gerald F. Uelmen, State Bar #39909 Santa Clara University School of Law Richard D. Runcie, State Bar # Fresno, California Attorneys for Appellant, Myron Carlyle Mower RESTATED ISSUES PRESENTED FOR REVIEW 1. Does the Compassionate Use Act of 1996 Confer Qualified Immunity From Prosecution? 11. How Should the Burden of Proving Immunity Based Upon a Claim of Medical Authorization Be Allocated? 1

2 III. If the Compassionate Use Act of 1996 Is Construed to Create an Affirmative Defense, How Should the Jury Be Instructed With Regard to the Burden of Proof? IV. Does the Compassionate Use Act of 1996 Preempt Local Policies Limiting the Number of Plants a Patient May Grow for Personal Medical Use? V. Should Appellant's Hospital-Bed Statement Have Been Excluded As Involuntary Within the Meaning of Mincey v. Arizona? STATEMENT OF THE CASE On August 19, 1997, the Tuolumne County District Attorney's office filed a complaint against appellant and his wife, Laurie Mower. Both were charged in Count I with a violation of section 11358, cultivating marijuana, a felony. (CT 1.)' [Footnote 1: "CT" refers to the one volume Clerk's Transcript on Appeal; "ACT" refers to the one volume Augmented Clerk's Transcript on Appeal; "RT" refers to the Reporter's Transcript of Proceedings in two volumes; "ART" refers to the Reporter's Augmented Transcript on Appeal in one volume.] Both were also charged in Count Il with a violation of section 11357, subdivision (c), possession of more than 28.5 grams (one ounce) of marijuana, a misdemeanor, The marijuana had been seized in a search of appellant's residence on July 11, Appellant was arrested on these charges on August 26, 1997 (CT 137, 15 1), and released on his own recognizance the following day. (CT 3, 15 1.) On December 8, 1997, a preliminary hearing was held and appellant and his wife were held to answer in Superior Court. (CT 7, 3.0.) By information, filed December 16, 1997, both appellant and his wife were charged with the same two counts as in the August 19th complaint. (CT 5.) On January 9, 1998, appellant entered pleas of not guilty to both counts. (CT 35.) On March 16, 1998, one day before trial began, appellant's wife, Laurie Mower, was dismissed as a codefendant. (RT 9; CT 13 1.) On March 17, 1998, appellant's jury trial commenced. (CT 46.) Just before the first witness was called to the stand, defense counsel brought a pre-trial motion in limine to exclude a tape recorded interview of appellant which investigator Kenneth Diaz conducted at the hospital where appellant had been admitted two days prior to the search of his home.(rt 9, 21.) The trial court denied the motion on the grounds that appellant was not subjected to "custodial" interrogation at the time of the hospital interview and, therefore, Miranda warnings were not required.(rt 24, 68-69; CT 46.) The court also found that appellant's statement was voluntary. (RT 69.) On March 19, 1998, the jury returned verdicts of guilty as to both the possession and cultivation counts. (RT 500; CT ). On April 20, 1998, appellant was sentenced to five years probation and a restitution fine of $ 1, was imposed, pursuant to California Penal Code, section , subdivision (b). (RT 512; CT ) 2

3 [Footnote 2: The clerk's recitation of the verdict for Count II indicates that appellant was found guilty of section (cultivation) in both Counts I and 11. (RT 500.) The clerk's recitation should have indicated for Count 11 that section 11357, subdivision (c) (possession), not section (cultivation), was the code section attached to that count. (RT 500.) The verdict forms themselves specify the correct statutory references (CT 119, 122), as does the probation report (CT 122, 126.) The Minute Order and Order Granting Probation (CT 140) contains an error in stating the conviction on Count II (possession) was a felony. A possession conviction under that statute is a misdemeanor. ( , subd. (c).) The confusion may stem from the fact that at the recitation of judgment, the court failed to specify on the record whether the convictions for each count were felonies or misdemeanors. (RT )] On December 6, 2000, the California Court of Appeal for the Fifth Appellate District affirmed appellant's convictions in an opinion certified for. partial publication. (All references to that opinion are to Appendix A of the Petition for Review). A timely Petition for Review was granted by this Court on March 14, STATEMENT OF FACTS As the prosecution aptly put it in their closing argument, "if there is a person in the State of California for whom [Proposition] 215 was enacted, it is Myron Carlyle Mower." (RT 445). Appellant, who was 35 years old at the time of his trial, (RT 275), has a 25 year history of serious, progressive and potentially fatal medical problems. (RT 87-88, 253, 275; CT 131.) He requires 24-hour-a-day monitoring and care, mostly provided by his wife. (RT 289; CT 13 1.) His only feasible alternative for relief for several of his symptoms is smoking marijuana. (RT 89-90, , 262, ) Smoking marijuana helps appellant keep food down, stimulates his appetite, helps with his nausea, controls constant pain, reduces the fluid levels in his eyes so that there is not so much clouding in his little remaining vision and, reduces the agitation and stress accompanying his vast array of health problems. (RT 89-90, 277.) While he received prescriptions for Marinol, a synthetic form of the active ingredient in marijuana, it didn't help relieve his nausea and made life more stressful for him. (RT 214, , 279.) Marinol and smoked marijuana do not have identical properties. (RT 214, 255.) Appellant suffers from Brittle Insulin-dependent Diabetes Mellitus. (RT ; CT 13 1; ART 30.) He had juvenile onset of diabetes. (RT 87, 275.) He is now legally blind, with eight percent vision in his left eye and no vision in his right. (RT 41, 67, 87, 254, 275.) Appellant was unable during his entire three day trial to see what was going on in the courtroom, other than shadows and some images, but he could hear. (RT 67, 275.) His blindness also prevents him from selfinjecting his required insulin after his wife performs his blood sugar checks six to eight times per day. (CT 13 1.) Appellant has diabetic neuropathy (lost sensation) in his feet, has a leg ulcer on his right leg, severe diabetic gastropathy (paralyzed stomach - Diabetic Gastroparesis) which causes him to have no appetite and his stomach neither empties nor digests food normally, and he has lost all his teeth due to chronic infection as a result of his diabetes. (RT 87-89, , ) His condition had deteriorated sharply in the past two and one-half to three years. (RT 276.) He has been virtually bed ridden for about four to five years. (RT 276.) Because of the nerve damage to his body, be can no longer feel when his blood sugar is fluctuating up or down and requires someone else to monitor him. (RT 289; CT 13 1.) Sometimes he blacks out and doesn't realize it 3

4 until he has been given a shot or medication and regains consciousness. (RT 290.) He also sometimes has seizures. (RT 290.) If his blood sugar gets too high, he gets violently sick. (RT 289.) He has been unable to hold solid food down, without smoking marijuana, for the past two years, because of nausea and vomiting. (RT 277.) He is nauseous 24-hours a day. (ART 29.) He has an AIDS-like wasting syndrome (CT 13 1; RT ) which smoking marijuana, in conjunction with other medication, alleviates. (RT 260, 277.) During the trial proceedings, appellant became nauseous and vomited on at least one occasion on the record. (ART 25, 30.) He suffers from high blood pressure (RT 87, 282) and his blood pressure also rose during trial and he became dizzy on more than one occasion. (ART 25, 30.) Appellant was instructed by his own defense counsel to take breaks when he had to vomit, and to put his head down when he felt dizzy so that he would not pass out. (ART 25.) As a result of his overall condition, he is very susceptible to infections and has been hospitalized several times for them. (RT 255.) He has also been hospitalized several times for pneumonia. (RT 255.) However, most of his hospitalizations have been for intractable nausea, vomiting, inability to eat and keep food or fluids down and the resulting dehydration. (RT 36, 255, 258.) When appellant does not have access to marijuana, he begins a vicious cycle of these conditions and ends up in the hospital again. (RT 258.) Appellant attempts to manage his pain by a number of methods. He currently takes oral morphine. (RT 282.) He also is given Demerol and Stadol in pill form, but they do not work very well for him. (RT 282.) Until he began smoking marijuana, he had needed injectable morphine to control his pain. (RT 282.) When he is admitted to the hospital, which is several times each year (RT ), he takes these pain and anti-nausea medications via an IV drip. (RT ) Appellant has never sought to conceal the fact that he cultivates marijuana for his personal medical use. On February 22, 1993, be pled guilty to a charge of cultivating marijuana in Tuolumne County Superior Court and was placed on probation for a period of five years. The conditions of probation included the condition that he would "submit his... residence to search for the seizure of controlled substances, and any time, by the Probation Officer or any Peace Officer." (ACT 1-2). Appellant's probation officer, Mr. Ray Hines, as well as the head of the local sheriffs narcotics unit (also known as the TNT unit), Sergeant Lunney, were aware that appellant had serious medical conditions requiring that appellant smoke marijuana. (RT 90-91, , , ) County law enforcement personnel had been given notice by appellant that, for both monetary and quality of marijuana reasons, appellant was growing marijuana for his own medical use on the recommendation of his physician. (RT , , ) After passage of Proposition 215 in November of 1996, appellant had checked with his probation officer to be sure he would not be violating the terms of his probation by cultivating marijuana for his own medical use. (RT 90, 283.) On February 25, 1997, Sergerant Lunney conducted a search of appellant's residence pursuant to his probation search terms. Appellant informed Sergeant Lunney search that he had the approval of his physician, Dr. Boggess, to smoke marijuana. (RT 4

5 283, , 324, 327.) Shortly thereafter, law enforcement obtained a medical release from appellant in order to investigate his representations about having a doctor's approval or a prescription. (RT , , 324, 327.) At the time of the February 1997 search of appellant's residence, Sergeant Lunney observed seven marijuana plants growing in pots. (RT 32 1.) Although he spoke with appellant at that time, Sgt. Lunney did not remove or confiscate the seven potted plants and did not tell him that he could not grow more than three plants. (RT , 326.) Appellant brought to Sergeant Lunney's attention a 10-plant grow policy which law enforcement in Santa Cruz county had used as their guideline for growing marijuana for personal use. (RT , ) Appellant had formerly resided in Santa Cruz county and was familiar with that policy. (RT ) Sergeant Lunney testified that at the time of the February search, he was simply waiting for guidance from the state Attorney General's office about a cultivation and possession enforcement policy, (RT 330.) At the February search, appellant told Sergeant Lunney that he intended to grow more than seven plants. (RT 329.) At some point, between the February and July of 1997, Tuolumne County law enforcement instituted a three plant limit cultivation policy. (RT 9091, ) The day after the February search, an article appeared in the local newspaper about appellant's cultivation for medical purposes. (RT 309.) Shortly thereafter, his seven plants were stolen. (RT 309.) He then began growing new marijuana plants. (RT 309.) In March 1997, Sergeant Lunney had appellant's physician contacted to confirm that appellant did have approval to smoke marijuana for medicinal purposes. (RT 90-91, , ) On July 11, 1997, appellant was in the Tuolumne General Hospital undergoing treatment for a variety of ongoing medical conditions related to his diabetes. (RT 36.) On that day, his residence was searched a second time pursuant to his probation search terms. The search was conducted by Sergeant Lunney, accompanied by Investigator Diaz and appellant's Probation Officer, Ray Hines. (RT I 11, 322, 330). In the midst of the search, appellant's wife returned home and observed law enforcement confiscating appellant's marijuana plants. (RT 132, 152.) Thirty-one plants were found growing and 28 of those plants were uprooted and confiscated, along with approximately seven and one-half ounces of harvested marijuana. (RT , 294, 302; CT 134). After being told by his wife in a phone call to the hospital that his medicine had been confiscated by law enforcement earlier that day, appellant was approached and interrogated in his hospital bed by Investigator Diaz. (RT 36-38, 132, ; CT ; ACT 3.) Appellant had been hospitalized for 3 days when Investigator Diaz arrived. (RT 36.) Investigator Diaz actually came to the hospital twice that day. The first time he came, after the seizure of the plants, was at about 4:00 p.m. and he was told by a nurse that appellant was heavily sedated, had an IV in his arm with which to receive Demerol for pain and was asleep. (RT 30-31, 132, 153.) Diaz instructed the nurse to page him when appellant was awake. (RT 132.) He received a page from the hospital staff at approximately 5:30 p.m. and returned to the hospital. (RT ) This time, he was able to speak with appellant alone in his hospital bed. (RT 133.) Appellant was medicated and highly sedated at the time he was inter-viewed by investigator Diaz at the hospital. (CT 132; RT 38-39, 291; ACT 3-21.) At some point in the questioning, investigator Diaz turned on his tape recorder. (ACT ) At one point in the interview, appellant stated to 5

6 investigator Diaz that his blood sugar was getting low. (RT 165, 291, 398; ACT 18.) When his blood sugar gets low, appellant generally gets pale, sweaty and blacks out. (RT 291.) He also acts like a "crazy drunk," without realizing it. (RT 291.) Investigator Diaz was unaware that when a diabetic's blood sugar is getting low it means the person could have seizures, pass out and go into a coma. (RT 165.) At some point during the taped interview, appellant told investigator Diaz that he was growing marijuana both for himself and for two other patients who had prescriptions or recommendations from their physicians. (RT , 301; ACT 3, 8, 12.) Appellant testified at trial that because of his heavily medicated state and low blood sugar, he did not remember telling investigator Diaz that he was growing for two other people. At trial, inconsistent with his taped statement, he denied that he was growing for anyone else and stated he did not know why he had said he was growing for others. He did concede that he made those statements to investigator Diaz on the tape, and the statements were admitted to prove the truth of their assertions. (RT , , , ) At the time of the July 11 th hospital interview, appellant had not been given his Miranda rights and he remained heavily sedated with a number of prescribed drugs and with an IV for selfadministered Demerol, and other fluids, inserted. (RT 22-24, 29, 30-31, 36-40, 153.) At almost the very end of the taped portion of the interrogation (ACT 3-21), appellant indicated to investigator Diaz that he didn't know what he should do, legally speaking, now that Diaz had confiscated his medicine earlier that day. (ACT 21.) Appellant's hospital-bed statement was relied upon by the prosecution at his trial to prove that he cultivated and possessed more marijuana than was necessary for his personal medical use. No other evidence was presented to suggest that the marijuana cultivated by appellant was intended for anyone's medical use other than his own. Evidence of the Tuolumne County three-plant policy was also presented to the jury (RT 130, 152, 326), along with the testimony of an expert witness who testified that 31 plants would yield, at harvest, between I and 2 pounds of marijuana per plant. (RT 368). Appellant testified that he smoked about eight grams of marijuana each day, and hoped to harvest a yield of about five pounds from his plants, a year's supply. (RT 294). He testified he was never informed of the three plant limit in Tuolumne County (RT 284). He also presented the testimony of his physician, who confirmed that she approved of his use of cannabis for medical purposes, (RT 262) and expert testimony that only half of the plants (females) would yield the buds or flowers that appellant smoked, and based upon how closely the plants were located to each other, the appellant's probable yield at harvest would be 4.35 pounds.(rt 203). Patients who participate in the federal government "Compassionate I.N.D.(Investigative New Drug) Program," under which the government distributes cannabis to seriously ill patients, receive six pounds of smokable cannabis per year. (RT 205). The jury was instructed that the appellant had an "affirmative defense" if possession and cultivation of marijuana was for the appellant's personal use with the recommendation or approval of a physician, and that appellant had the burden of proving that defense by a preponderance of the evidence. (RT 440; CT 71, 72). ARGUMENT 6

7 1. THE COMPASSIONATE USE ACT OF 1996 CONFERS QUALIFIED IMMUNITY FROM PROSECUTION. - The Compassionate Use Act of 1996, adopted by a popular initiative known as Proposition 215, created a new Section of the California Health & Safety Code. That section recognizes qualified statutory immunity for seriously ill Californians who cultivate or possess marijuana for medical purposes upon the recommendation or approval of a physician. The immunity also extends to "primary caregivers" when the purpose of cultivation or possession of marijuana by a primary caregiver is to provide marijuana to the patients for whose housing, health or safety he assumes responsibility. By construing the Compassionate Use Act to create an "affirmative defense" rather than to confer qualified immunity, the court below deprived the Appellant of substantial procedural protection which prejudiced him, requiring reversal of his conviction.' [Footnote 3: The decision of the court below finds no support in the decision of the First District Court of Appeal in People v. Trippet (1997) 56 Cal.App4th In Trippet, the Court considered the availability of Proposition 215 as a partial defense for a defendant whose conduct occurred prior to the enactment of Proposition 215. Since Proposition 215 was being applied retroactively, no claim could be made that immunity attached to the defendant's conduct, and the Court had no occasion to consider this issue. In that context, the Court declared that Proposition 215 provides a "limited affirmative defense," with the burden on the defendant to raise and prove its elements. 56 Cal.App.4th at 1551, n.16. Where the charged conduct occurs subsequent to Proposition 215's enactment, however, Section confers immunity upon patients and primary caregivers.] The establishment of qualified statutory immunity in the Compassionate Use Act was a conscious, deliberate choice of its drafters, "to ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction." California Health & Safety Code (b)(1)(B) (emphasis supplied). The principal difference between the protection afforded by immunity and that conferred by an affin-native defense is that immunity can be asserted and litigated prior to trial on a motion to dismiss. People v. Backus (1979) 23 Cal.3d 360,380. A statutory grant of immunity also functions as a jurisdictional bar to prosecution, so it can be asserted at any time in the proceedings. People v. King (1967) 66 Cal.2d 633, 645; Summers v. Superior Court (1959) 53 Cal.2d 295, 298. Like other jurisdictional bars, such as the statute of limitations, the prosecution is required to allege the factual circumstances that defeat the bar in the accusatory pleadings. People v. Crosby (1962) 58 Cal.2d 713, The Court of Appeals in this case assumed that recognition of statutory immunity would impose the burden upon the prosecution to disprove facts that are peculiarly within the defendant's knowledge, and thus concluded that the "rule of necessity and convenience" required rejection of statutory immunity. [Opinion at p. 17]. It cannot be assumed, however, that a grant of immunity invariably imposes upon the prosecution the burden or proving or disproving all the facts upon which the immunity is based. Just as in the case of claims that prosecution barred by the statute of limitations, the burden of proof may be imposed upon the defendant in pretrial litigation. The allocation of the burden of proof with respect to the various factual issues raised by reliance upon the Compassionate Use Act will be separately addressed in this brief. The question of burden of proof raises issues that are separate and distinct from the question of whether the Act confers immunity or recognizes an affirmative defense. 7

8 A. The Language of the Initiative. In construing a voter initiative like Proposition 215, the Court should "turn first to the language of the statute, giving words their ordinary meaning." People v. Birkett (1999) 21 Cal4th 226, 23 1; People v. Rizo (2000) 22 Cal4th 681, 685. The statutory language must also be construed in the context of the overall statutory scheme. Horwich v. Superior Court (1999) 21 Cal4th 272, 276; People v. Rizo, 22 Cal4th at 685. As this Court stated in People ex rel. Daniel E. Lungren v. Superior Court (1996) 14 Cal4th 294, 30 1: Absent ambiguity, we presume that the voters intend the meaning apparent on the face of an initiative measure and the court may not add to the statute or rewrite it to conform to an assumed intent that is not apparent in its language. Of course, in construing the statute, the words must be read in context, considering the nature and purpose of the statutory enactment, The language used in Health & Safety Code makes it abundantly clear that a grant of statutory immunity is intended, rather than simply a defense to prosecution. The declared purpose of the enactment is to ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction." California Health & Safety Code I (b)(1)(B), (emphasis supplied). This language can be compared to the language of California Insurance Code 12924(b), which provides:... [N]o individual shall be prosecuted or be subjected to punishment for a felony or misdemeanor for or on account of any act, transaction, matter or thing concerning which he is so compelled... to testify or produce [any book, document or other thing under his control]. In People v. King, supra, this Court held the predecessor of this statute conferredimmunity upon a defendant, requiring the dismissal of his indictment forconspiracy and grand theft on a motion pursuant to Penal Code 995. The intent of the Compassionate Use Act of 1996 to confer immunity is made even clearer by the language of subsection (d), which provides that "Section , relating to the possession of marijuana, and Section , relating to cultivation of marijuana, shall not apply to a patient, or to a primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician." (Emphasis supplied). This language can be compared to the California prohibition of trespass in California Penal Code 602 (n), which provides: "However, this subdivision shall not be applicable to persons engaged in lawful labor union activities which are permitted to be carried out on the property by the California Agricultural Labor Relations Act or by the National Labor Relations Act." In the case of In Re Catalano (1981) 29 Cal.3d 1,13, this Court concluded that this provision conferred broad immunity upon labor union representatives that could serve as a bar to their prosecution. Finally, subsection (e) of Health & Safety Code defines "primary 8

9 caregiver" as the individual "designated by the person exempted under this section" who has consistently assumed responsibility for the housing, health or safety of that person. (Emphasis supplied). Declaring that a prohibition "shall not apply," and that persons are "exempt" from it are declarations of immunity, not simply matters that can be raised in defense to a prosecution. The court below construed the language of as the mere recognition of an "exception" to the general liability. imposed by and , and then proceeded to apply the "general rule" that a statute which "defines an offense in unconditional terms and then specifies an exception to its operation" creates an affirmative defense, citing People v. Spry (1997) 58 Cal.App4th 1345 and In Re Andre R. (1984) 158 Cal.App.3d 336. The "general rule" relied upon, however, has never been used to reject a claim of immunity, but rather to allocate the burden of pleading and proving an "exception." And in every case in which California courts have applied this "general rule," the statute being construed enacted the prohibition and the exception at the same time, separating the former from the latter by words such as "unless" or "except." People v. Spry, supra, did not even apply this "general rule," since it was not construing a statutory exception at all. The case held that when the affirmative defense to drug possession charges recognized by this Court in People v. Mijares (1971) 6 Cal.3d 415 was submitted to a jury, the jury had to be instructed as to the magnitude of the defendant's burden of proof. The Court quoted at length the opinion in People v. Fuentes (1990) 224 Cal.App.3d 1041, 1044 (See 58 Cal.App.4th at 1365), and it was this quote that was in turn quoted by the court below. People v. Fuentes, supra, held it was proper to instruct the jury that the defendant had the burden of proving his acquisition of a hypodermic needle was lawful, when charged with a violation of Business & Professions Code 4149, which provides, "No person shall possess or have under his or her control any hypodermic needle or syringe except when acquired in accordance with the provisions of this article. "(Emphasis supplied). The other case cited by the court below for the "general rule" was In Re Andre R. (1984) 15 8 Cal.App.3d 336, which held the prosecution need not prove the lack of parental permission when a minor is charged with violating Penal Code , which provides, "[a] minor may not possess a concealable firearm unless he or she has the written permission of his or her parent or guardian... (Emphasis supplied). Andre R., in turn, cited three other cases construing similar statutes recognizing exceptions to criminal liability which was created by the same statutory enactment. Ex Parte Hornef (1908) 154 Cal. 3 55, 360; People v. Lawrence (1961) 198 Cal. App.2d 54, 62-63; People v. Mason (1960) 184 Cal.App.2d 317, 356. Thus, the "general rule" relied upon by the Court below addressed a very different scenario than the one presented by the Compassionate Use Act. Sections and of the Health and Safety Code were enacted by the Legislature in Section , of course, was enacted by popular initiative in To combine these measures and surmise "legislative intent" from their juxtaposition is ludicrous. Long before the enactment of the Compassionate Use Act, the criminal prohibitions of possession and cultivation of marijuana already provided that such activity was prohibited "except as authorized by law," (California Health & Safety Code ) or "except as otherwise provided by law." (California Health & Safety Code 11358). The Compassionate Use Act did more than simply define another circumstance under which possession or cultivation was authorized or provided by law; it declared that these two sections shall not apply to a patient, or a patient's primary caregiver, who possesses or cultivates 9

10 marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician. The reason it did so was to ensure such patients or primary caregivers were not subject to criminal prosecution or sanction. The court below never mentioned or cited In Re Catalano, supra, and cited the case of People v, King, supra, only for the proposition that a statutory grant of immunity enjoins the prosecution of a criminal action and thus deprives the court of jurisdiction to proceed. (Opinion at p. 15, n.4). In both of these cases, however. this Court construed language nearly identical to the language utilized in the Compassionate Use Act, and concluded that it conferred a grant of immunity. The drafters of initiative measures must have confidence that California courts will consistently apply the precedents of this Court in construing the language utilized. There is simply no way the language used in drafting the Compassionate Use Act can be fairly read except to confer a grant of immunity. B. Ballot Pamphlet Language. Only when the language of an initiative is ambiguous does this Court resort to "other indicia of the voters' intent, particularly the analyses and arguments contained in the official ballot pamphlet." People v. Birkett (1999) 21 Cal.4th 226, 243; People v. Rizo (2000) 22 Cal.4th 681, 685. The statutory language of the Compassionate Use Act unambiguously confers immunity, and there is no analysis or argument in the ballot pamphlet which undercuts that conclusion in any way. The Court of Appeal mistakenly seized upon one clause in the rebuttal argument signed by San Francisco District Attorney Terrence Hallinan, however. [Footnote 4: 'Hallinan was the only California District Attorney to endorse Proposition 215. He did not participate in drafting the measure.]responding to the suggestion that the initiative would make it more difficult to prosecute drug dealers, [Footnote 5: The Argument Against Proposition 215 to which Hallinan was responding, signed by James P. Fox as President of the California District Attorneys Association, asserted that "Proposition 215 will provide new legal loopholes for drug dealers to avoid arrest and prosecution."] he [Hallinan] argued, "Proposition 215 simply gives those arrested a defense in court, if they can prove they used marijuana with a doctor's approval." Rather than suggesting that the initiative creates what would be legally characterized as an "affirmative defense," as the Court of Appeal concluded, this argument simply noted that patients would have to prove the doctor's approval, as they may have to do regardless of whether the statutory protection is construed as immunity or as an affirmative defense. Characterizing the legal protection conferred by the initiative as a "defense" does not even address the question of its status as immunity or affirmative defense. An immunity can serve as a "defense" if the defendant is given an opportunity to litigate it before the jury. Referring to a "defense in court" for a lay audience of voters should have no consequence with respect to the legal label attached to that defense. The availability of a claim of immunity to defeat a prosecution would certainly be encompassed within the public understanding of a "defense." Webster's Dictionary defines a "defense" as "the defendant's denial, answer or plea." The court below was also mistaken in its overblown assertion that: No part of the ballot pamphlet for Proposition 215 provided any indication that in adopting Proposition 215 the electorate believed they were making medical marijuana users immune from prosecution under Health and Safety Code section and Indeed, another part of the pamphlet states Proposition

11 would "protect patients from criminal penalties for marijuana; it does not advise voters that patients would be protected from criminal prosecution. " (Opinion at pp ). In fact the Official Summary of Proposition 215 prepared by Attorney General Daniel Lungren clearly states that the measure 46 exempts patients and defined caregivers... from criminal laws which otherwise prohibit possession or cultivation of marijuana." (Emphasis supplied). And the very argument to which District Attorney Hallinan was responding asserts the measure will allow drug dealers "to avoid arrest and prosecution. "(Emphasis supplied). The ballot pamphlet as a whole is completely consistent with the language of Proposition 215, describing the protection the measure would confer in unambiguous terms ordinarily associated with grants of immunity. C. Common Sense Construction. Under the banner of "common sense" construction, the court below concluded it was "unworkable" to require police officers to investigate a defendant's claim of medical authorization prior to arrest. Even if medical authorization were treated as an "affirmative defense," however, a reasonable police officer would investigate its validity before subjecting the claimant to arrest. Except for the grant of immunity conferred by statute, there is little difference between a suspect's claim that possession of narcotics is pursuant to a valid prescription, and a suspect's claim that possession of cannabis is pursuant to a physician's recommendation or approval. In the former case, would a reasonable police officer immediately arrest the suspect and say "tell it to the judge"? No, he would ask to see the prescription and attempt to verify its authenticity. Similarly, if one arrested for unlawful possession of a handgun asserted that he bad a valid permit authorizing his possession, a reasonable police officer would attempt to verify the permit before making an arrest. The burden to verify a claim of approval or recommendation from a physician for medical use of cannabis is no greater, and that burden should be imposed regardless of whether the claim is labeled an "immunity" or an "affirmative defense." In either case, probable cause that a crime has been committed requires probable cause to believe the claim of a valid prescription or a valid physician's recommendation is inoperative. From the perspective of the arresting officer, the issue of immunity vs. affirmative defense actually has little practical consequence. Where it makes a real difference is with regard to the suspect who has been arrested, and now faces prosecution. Will he have an opportunity to litigate his claim of medical authorization prior to trial, or must he undergo the burden and expense of an actual trial before he can assert his claim of medical authorization? With regard to the patient who has a valid claim of medical authorization, the true "common sense" answer is that pretrial resolution of this issue is preferable. Neither the state nor the defendant have anything to gain by delaying resolution of this issue until an expensive and timeconsuming trial is conducted. Assume that an officer has the minimal "probable cause" to arrest a patient, either because the physician is unavailable to confirm an oral recommendation or approval, or the amount of cannabis possessed by the patient appears to exceed the quantity that would be reasonably necessary for his medical condition. Assume further that the patient is seriously ill, suffering from one of the conditions specified in Health & Safety Code (b)(1)(A) [cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis or migraine]. To say it makes "common sense" to incarcerate the patient, deprive him of his medication, and await a full trial on the merits to resolve these issues insults our intelligence. It 11

12 only makes "common sense" if one assumes all, or even most claims of medical authorization will be bogus. It only makes "common sense" if we junk the presumption of innocence. Appellant provides an excellent example of kind of treatment of "seriously ill Californians" the voters sought to prevent when they enacted the Compassionate Use Act. Despite his precarious medical condition and blindness, appellant was subjected to a custodial arrest and put through a physically agonizing three day trial before he could even present his claim that his activity was protected by the Compassionate Use Act. The "common sense" construction of the Compassionate Use Act is to take the word "compassion" seriously, and conclude that the compassion the voters of California were expressing was not just sympathy for those suffering from serious illness, but sympathy for those who are needlessly subjected to the burdens of lengthy criminal litigation while suffering from serious illness. If our goal is "to ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes," and to ensure that patients and their primary caregivers; "are not subject to criminal prosecutions," then it certainly makes common sense to construe the protection conferred by the Compassionate Use Act as immunity, which permits them to assert and litigate their claims prior to trial. D. Prejudice to Appellant. It is well settled in California that jurisdictional issues can be raised at any time, even on appeal. Summers v. Superior Court, supra, 53 Cal.2d at 298; People v. Williams (1999) 77 Cal.App.4th 436, Since a statutory grant of immunity is jurisdictional, the failure to assert the claim of immunity in the trial court cannot be construed as a waiver. The claim was raised and considered on the merits by the Court of Appeal. In this case, the Appellant was seriously prejudiced by the improper construction of the Compassionate Use Act to confer only an "affirmative defense." The jury was instructed that he was required to prove medical authorization to cultivate all the plants in his possession "by a preponderance of the evidence." [R.T. 440; C.T.71, 72]. While there was no dispute he had a physician's approval, the evidence was sharply divergent as to whether the quantity of cannabis being cultivated was reasonably necessary for Appellant's personal medical use. The Appellant was also deprived of the opportunity to assert immunity based upon a claim he was a primary caretaker for others whom he believed had a physician's approval, made in the course of his hospital interview. [A.C.T. 3]. While the trial court and the court of appeal both concluded this claim was foreclosed by Appellant's testimony at trial, he was never permitted to raise the issue pretrial, on grounds of a good faith belief that others for whose health he assumed responsibility had the necessary physician's approval or recommendation. In determining the extent of the duty imposed upon the primary caregiver to verify the eligibility of the patient to receive medical marijuana, the Court must look to the context of the statutory plan for the distribution of controlled substances to patients for medical purposes. The controlling standards are those found in California Health & Safety Code Section , which provides that those privileged to furnish controlled substances to patients (a) may do so when the patient is suffering from a disease, ailment, injury or infirmity of old age; (b) may do so only when in good 12

13 faith he or she believes the disease, ailment, injury or infirmity requires the treatment; and (c) shall prescribe, furnish or administer controlled substances only in the quantity and for the length of time as are reasonably necessary. Thus, when Health & Safety Code Section permits a primary caregiver to possess or cultivate marijuana "for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician," no duty is imposed to personally verify the recommendation or approval of the physician. The primary caregiver need only be acting in the good faith belief that the recommendation or approval exists. People v. Lonergan (1990) 219 Cal.App.3d 82. II. THE BURDEN OF PROVING IMMUNITY BASED UPON A CLAIM OF MEDICAL AUTHORIZATION SHOULD BE ALLOCATED IN THE SAME MANNER AS A CLAIM PROSECUTION IS BARRED BY THE STATUTE OF LIMITATIONS. A claim of immunity under the Compassionate Use Act is analogous to a claim that prosecution is barred by the statute of limitations. Both claims are jurisdictional bars to prosecution, and both can be asserted as defenses at trial. In both cases, however, the legislative purpose of not subjecting those with meritorious claims to the burdens of trial should be accommodated by an opportunity for pre-trial litigation. In the context of a claim that prosecution is barred by the statute of limitations, this Court has ruled that "the burden is on the People of establishing that the offense was committed within the applicable period of limitations." People v. Crosby (1962) 58 Cal.2d 713, 725. Where the defendant is charged by indictment, the evidence before the grand jury "must include at least some evidence that the prosecution is not barred by the statute of limitations." Id. Thus, an indictment must be dismissed on Motion pursuant to California Penal Code 995 if there is insufficient evidence to at least establish "probable cause" to believe the prosecution is not barred. And in order to hold a defendant for trial at a preliminary hearing, the People "bear the burden of producing evidence" which demonstrates probable cause to believe the prosecution is not barred by the statute of limitations. People v. Zamora (1976) 18 Cal.3d 538, , n.26. The Zamora Court also held that the trial court has discretion to hold a bearing on the limitation issue before proceeding to the trial of the general issues: We are aware of our past statements that the limitation issue is, upon proof of probable cause to believe that the statute is not a bar, a question for the trier of fact. But the limitation question is a basic jurisdictional issue and the bar thereof is aimed as much at the prevention of untimely prosecutions as it is at the prevention of untimely convictions. If it appears possible that the evidence will establish as a matter of law that the period of limitation has run, then judicial economy may be far better served if the issue is resolved at the earliest possible stage of the proceedings rather than waiting until an entire trial on multiple issues is completed. Moreover, the determination of the trial court after such a hearing will be similar to that on a motion for a directed verdict without the necessity of first litigating the merits of the case. We conclude therefore that a trial court has within its discretion the power to bold an evidentiary hearing for the purposes of determining whether as a matter of law the statute of limitations bars the prosecution. 13

14 18 Cal.3d at , n.25. If the People prevail at a pretrial hearing, and the court concludes the statute of limitations does not bar the prosecution "as a matter of law," then the limitation issue "must still be resolved by the jury if it remains disputed by the defendant." Id. at , n.25. The Zamora court held the prosecution need only meet a preponderance of evidence standard at trial, however, noting the jury must be carefully instructed "making it clear the lesser standard applies solely to the limitation issue." Id. at 565, n. 27. In People v. Lopez (1997) 52 Cal.App.4th 233, the Court held that in a pretrial motion to dismiss, the defendant bears the burden of proving that the statute of limitations has run as a matter of law: 52 Cal.App.4th at 251. Although the prosecution bears the ultimate burden at trial, in a pretrial motion to dismiss the accusatory pleading, the defendant is seeking the extraordinary relief of dismissal without trial and consequently bears the burden of establishing his entitlement to that relief. If the evidence is in conflict on the question or if defendant simply fails to establish that the statute has run as a matter of law, then the motion should be denied. Applying an analogous procedure to claims of immunity under the Compassionate Use Act, the prosecution would only need to offer sufficient evidence to establish "probable cause" the defendant lacked medical authorization in grand jury proceedings or at a preliminary hearing. The defendant could challenge the sufficiency of the evidence to meet the probable cause standard in a Motion pursuant to California Penal Code 995. The defendant could also move to dismiss, on the grounds he is immune by virtue of medical authorization "as a matter of law." The defendant would bear the burden of proof on. this motion. At trial, the prosecution would bear the burden of proof on the issue of medical authorization. That burden would not require proof beyond a reasonable doubt, however. The prosecution would meet its burden by establishing the lack of medical authorization by a preponderance of the evidence, just as it does when the statute of limitations is asserted as a bar. III. EVEN IF THE COMPASSIONATE USE ACT IS CONSTRUED TO CREATE AN AFFIRMATIVE DEFENSE, THE JURY SHOULD BE INSTRUCTED THAT THE DEFENDANT NEED ONLY RAISE A REASONABLE DOUBT. As the court below construed the Compassionate Use Act, it created an "exception" to the prohibition of Health & Safety Code Sections and As thus construed, Section would actually be read to provide: Except as authorized by law, every person who possesses... marijuana, unless upon the written or oral recommendation or approval of a physician for the personal medical purposes of the patient, shall be punished... 14

15 As thus construed, Section would be virtually identical to Sections and of the Health & Safety Code, which provide: Except as otherwise provided..., every person who possesses... any controlled substance... unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished (Emphasis supplied). As so construed the burden of proof would be shifted to the defendant. That burden would not require proof by a preponderance of evidence, however, as the jury in this case was instructed. Rather, the defendant would only be required to raise a reasonable doubt. As this Court noted in People v. Montalvo (1971) 4 Cal.3d 328, 333, n.3: Another way in which a burden may be shifted to the defendant is illustrated by numerous drug statutes which provide for conviction on a showing that the defendant possessed a dangerous or restricted drug except upon prescription of a physician. (E.g., Health & Safety Code 11500, ) [Now Sections and 11377]. Such an exception may be taken advantage of by the defendant only on some initial showing which would tend to raise a reasonable doubt with respect to that issue. People v. Marschalk (1962) 206 Cal.App.2d 346, ; People v. Martinez (1953) 117 Cal.App.2d 701, 708; People v. Bill (1934) 140 Cal.App. 3 89, (Emphasis supplied). In accordance with the decision in Montalvo, CALJIC Instructions No and are regularly used to instruct the jury where a defense is asserted that the defendant had a lawful prescription. The jury is instructed: To establish this defense the burden is on the defendant to raise a reasonable doubt as to [his] [her] guilt of possession of a controlled substance without a prescription. It would indeed be ironic, in light of the stated purpose of the Compassionate Use Act, to construe it in a manner that imposes a heavier burden of proof upon medical users of cannabis to show a physician's approval than the law imposes upon medical users of narcotic drugs to show a lawful prescription. Although no objection was made to the instruction imposing upon the Appellant the burden to prove his defense by a preponderance of the evidence, the trial court has a sua sponte duty to properly instruct the jury on the burden of proof. California Evidence Code 502 provides: The court on all proper occasions shall instruct the jury as to which party bears the burden of proof on each issue and as to whether that burden requires that a party raise a reasonable doubt concerning the existence or nonexistence of a fact or that he establish the existence or nonexistence of a fact by a preponderance of the evidence, by clear and convincing proof, or by proof beyond a reasonable doubt. 15

16 In People v. Vann (1974) 12 Cal.3d 220, 228, this Court concluded that failure to sua sponte instruct the jury of the need to find the elements of the charged offense beyond a reasonable doubt required reversal. Acord, People v. Elguera (1992) 8 Cal.App.4th 1214, IV. THE COMPASSIONATE USE ACT PREEMPTS LOCAL POLICIES LIMITING THE NUMBER OF PLANTS A PATIENT MAY GROW FOR PERSONAL MEDICAL USE. In this case, the Court of Appeal declined to decide whether it was a violation of state or federal ex post facto laws to convict appellant of violating Tuolumne County's three-plant limit policy. (Opinion at p. 21.) The Court of Appeal reasoned that appellant was simply charged and convicted of growing more marijuana than was needed for his personal use and that the threeplant policy played no part in increasing the criminal penalties against him. The court further refused to discuss this constitutional question unless it was compelled to do so. (Ibid.) The glaring error in that analysis is that the Compassionate Use Act provides immunity from prosecution, as well as from conviction and sanction. (Health & Saf, Code, sec , subds. (b)(1)(13) and (d).) The Court of Appeal did not address the impact of the three-plant limit upon appellant's claim of immunity, but merely discussed the conviction and punishment. It would be disingenuous to ignore the profound role of Tuolumne County's three-plant policy in the prosecution of the appellant. Although the appellant was previously growing seven plants, and expressed the intention to grow more, local law enforcement officials made no effort to arrest him until after the three-plant policy had been formulated. The appellant was never informed of the existence of the policy until after his arrest. The jurors were repeatedly told that the trigger the appellant's prosecution was his violation of the county's three-plant policy, as if it had the force of law. The jurors were informed through testimony that the reason appellant's plants had been uprooted, and that he was charged and arrested, was a direct result of violating that policy. (RT , , , ) The jurors were led to believe that Tuolumne County law enforcement had the authority to set such a policy and that the policy had the force of law. Regardless of whether the issue is perceived as a violation of the prohibition of ex post facto laws or a problem of preemption, it is error to permit prosecution or conviction of a patient based upon locally-adopted limits or "guidelines" to define the quantity of cannabis a patient may possess or cultivate. While local law enforcement agencies are certainly free to establish internal policies for the exercise of their discretion not to arrest, these policies cannot be given the force of law in the prosecution of patients under the Compassionate Use Act of Jurors should never even learn of the existence of such policies. If they do become relevant for some purpose other than defining the quantity of cannabis that is reasonably necessary for a patient's medical use, the jury must be carefully instructed as to their limited purpose. The analysis for this argument begins with the California Constitution's treatment of state preemption over local ordinances and regulations. This Court has often applied the same well settled test for measuring whether a municipal ordinance or regulation has been preempted by statewide general law. The test is set forth in detail in Sherwin-Williams Co. v. City of Los Angeles (1993) 4 Cal.4th 893, at : 16