“In 1996, the California electorate approved Proposiiton 215 and adopted the CUA, which provides ‘Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of thee patient upon the written or oral recommendation or approval of a physician.’ By this and related provisions, the CUA provides an affirmative defense to prosecution for the crimes of possession and cultivation. [citations omitted] The CUA does not grant immunity from arrest for those crimes, however. So long as the authorities have probable cause to believe that possession or cultivation has occurred, law enforcement officers may arrest a person for either crime regardless of the arrestee’s having a physician’s recommendation or approval.” (People v. Kelly (2010) 47 Cal.4th 1008, 1013.)
Proposition 64 allows “adults 21 years and older to use, possess, purchase and grow nonmedical marijuana within defined limits for use by adults 21 years and older.”
Among the 28 intentions comprising statement of purpose and intent of Proposition 64, the People enacted the following:
”The purpose of the Adult Use of Marijuana Act is to establish a comprehensive system to legalize, control and regulate the cultivation, processing, manufacture, distribution, testing, and sale of nonmedical marijuana, including marijuana products, for use by adults 21 years and older, and to tax the commercial growth and retail sale of marijuana. It is the intent of the people in enacting this act to accomplish the following:
Proposition 64: The Adult Use of Marijuana Act of 2016 (“AUMA”), Sec. 3 Purpose and Intent
In People v. Kelly (2010) 47 Cal.4th 1008, the Supreme Court of California held that the Medical Marijuana Program (“MMP”) is invalid to the extent it amends the voter-enacted Compassionate Use Act (“CUA”) by burdening a defense that would be available pursuant to the CUA, but it would be inappropriate to sever the MMP provision creating quantity limits and hence void that provision in its entirety. At odds were the provisions of the MMP Section 11362.71 and Section 11362.77(a), which provides that a “qualified patient” or primary caregiver may possess no more than eight ounces of dried marijuana and in addition maintain no more than six mature of 12 immature marijuana plants.
In Kelly the Court reviewed the appellate level determination that section 11362.77 of the MMP, insofar as it places a specific limitations upon the amount of medical marijuana that a person protected by the CUA may possess and cultivate, constitutes an amendment of the CUA in violation of California Constitution article II, section 10, subdivision (c). (Id. at 1042.) The Court found that by extending the reach of section 11362.77’s quantity limitations beyond those persons who voluntarily register under the MMP and obtain an identification card that provides protection against arrest – and by additionally restricting the rights of all “qualified patients” and “primary caregivers” who fall under the CUA- the challenged language of section 11362.7 effectuates a change in the CUA that takes away from rights granted by the initiative statute. (Id. at 1043.) In this sense, the Court found section 11362.77’s quantity limitations conflict with – and thereby substantially restrict- the CUA’s guarantee that a qualified patient may possess and cultivate any amount of marijuana reasonably necessary for his or her current medical condition. (Id.) In that respect, section 11362.7 improperly amends the CUA in violation of the California Constitution. (Id.) Whether or not a person entitled to register under the MMP elects to do so, that individual, so long as he or she meets the definition of a patient or primary caregiver under the CUA, retains all the rights afforded by the CUA. Thus, such a person may assert, as a defense in court, that he or she possessed or cultivated an amount of marijuana reasonably related to meet his or her current medical needs without reference to the specific quantitative limitations specified by the MMP. (Id. at 1049.)
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