California Criminal Jury Instructions (CALCRIM) (2017)

3413. Collective or Cooperative Cultivation Defense (Health & Saf. Code, § 11362.775)

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3413.Collective or Cooperative Cultivation Defense (Health &
Saf. Code, § 11362.775)
(Planting[,] [or]/ cultivating[,] [or]/ harvesting[,] [or]/ drying[,] [or]/
processing) marijuana is lawful if authorized by the Medical Marijuana
Program Act. The Medical Marijuana Program Act allows qualified
patients [and their designated primary caregivers] to associate within
the State of California to collectively or cooperatively cultivate
marijuana for medical purposes, for the benefit of its members, but not
for profit.
In deciding whether a collective meets these legal requirements, consider
the following factors:
1. The size of the collective’s membership;
2. The volume of purchases from the collective;
3. The level of members’ participation in the operation and
governance of the collective;
4. Whether the collective was formally established as a nonprofit
organization;
5. Presence or absence of financial records;
6. Accountability of the collective to its members;
7. Evidence of profit or loss.
There is no limit on the number of persons who may be members of a
collective.
Every member of the collective does not need to actively participate in
the cultivation process. It is enough if a member provides financial
support by purchasing marijuana from the collective.
Aqualified patient is someone for whom a physician has previously
recommended or approved the use of marijuana for medical purposes.
[¶]
Collectively means involving united action or cooperative effort of all
members of a group.
Cooperatively means working together or using joint effort toward a
common end.
Cultivate means to foster the growth of a plant.
[A primary caregiver is someone who has consistently assumed
responsibility for the housing, health, or safety of a patient who may
legally possess or cultivate marijuana.]
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The People have the burden of proving beyond a reasonable doubt that
the defendant was not authorized to (plant[,] [or]/ cultivate[,] [or]/
harvest[,] [or]/ dry[,] [or]/ process) marijuana for medical purposes. If
the People have not met this burden, you must find the defendant not
guilty of this crime.]
New February 2015; Revised August 2015
BENCH NOTES
Instructional Duty
A collective or cooperative cultivation defense under the Medical Marijuana
Program Act may be raised to certain marijuana charges. (See Health & Saf. Code,
§ 11362.775) The burden is on the defendant to produce sufficient evidence to raise
a reasonable doubt that possession was lawful. (People v. Jackson (2012) 210
Cal.App.4th 525, 529–531, 538–539 [148 Cal.Rptr.3d 375].
AUTHORITY
• Elements Health & Saf. Code, § 11362.775.
• Factors To Consider People v. Jackson (2012) 210 Cal.App.4th 525 [148
Cal.Rptr.3d 375].
• Primary Caregiver People v. Mentch (2008) 45 Cal.4th 274, 282–292 [85
Cal.Rptr.3d 480, 195 P.3d 1061]; People v. Mitchell (2014) 225 Cal.App.4th
1189, 1205–1206 [170 Cal.Rptr.3d 825].
• Defendant’s Burden of Proof on Medical Marijuana Program Act
Defense People v. Jackson (2012) 210 Cal.App.4th 525, 529–531, 538–539
[148 Cal.Rptr.3d 375].
• All Members Need Not Participate in Cultivation People v. Anderson (2015)
232 Cal.App.4th 1259 [182 Cal.Rptr.3d 276].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 147.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01 (Matthew Bender).
3414–3424. Reserved for Future Use
CALCRIM No. 3413 DEFENSES AND INSANITY
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