Summary:
No More Limits on "Permissible Quantity” of Medical Marijuana
On January 21, 2010, the California Supreme Court issued its
ruling in People v. Kelly (S164830), which essentially eliminates
the limitations on the quantity of medical marijuana that a qualified patient
or primary caregiver may legally possess or cultivate. After the California
voters adopted the Compassionate Use Act (“Act”), the California
Legislature enacted Health & Safety Code Section 11362.77 as part of the
Medical Marijuana Program Act (“Program”). Section 11362.77 allows
possession of up to 8 ounces of dried marijuana and the maintenance of no
more than 6 mature or 12 immature plants per qualified patient, unless a higher
amount is recommended by a physician. The Supreme Court ruled that Section
11362.77 impermissibly amended the voter-approved Act, insofar as its quantity
restrictions burden a defense under the Act to a criminal charge of possessing
or cultivating marijuana.
This case arises out of the criminal conviction of Patrick Kelly,
who was prosecuted after law enforcement officers discovered vacuum sealed
baggies containing approximately 12 ounces of marijuana and at least seven
potted marijuana plants at his home. At trial the prosecutor argued to the
jury that Kelly was guilty because he was in possession of more than 12 ounces
of marijuana without the requisite doctor’s recommendation to exceed
the permissible quantity of 8 ounces. Kelly was convicted of possessing more
than 28.5 grams of marijuana. On appeal, the California Court of Appeal, Second
Appellate District severed from the Program Section 11362.77, holding that
it impermissibly amended the Act in violation of California Constitution.
The appellate court also ruled that the prosecutor’s argument to the
jury under this section was improper “prejudicial error” entitling
Kelly to a retrial.
The California Supreme Court granted review to consider whether the limits
on the quantity of medical marijuana imposed by Section 11362.77 are valid under
the California Constitution, Article II, Section 10, Subdivision (c), which
authorizes Legislative amendments either by another statute taking effect upon
approval by the electorate or when the initiative statute expressly permits
amendments. The Supreme Court affirmed the Court of Appeal’s ruling on
the constitutionality of Section 11362.77, but reversed the ruling of severability.
In reaching its decision, the Court engaged in lengthy review and discussion
of the historical evolution of California’s constitutional limitation
on the Legislature’s authority to amend and repeal initiatives adopted
by voters. At the heart of this limitation is safeguarding the initiative powers
of the people of California. Because the Act does not expressly authorize legislative
amendments and the Program was not submitted for approval by the voters, the
Court evaluated whether the quantity limitations of Section 11362.77 amend the
voter-approved Act. As the Supreme Court explained, the Act permits qualified
patients and primary caregivers to posses an amount of marijuana reasonably
necessary for the qualified patient's personal medical needs, as recommended
by a physician verbally or in writing. The Court concluded that because the
quantity restrictions of Section 11362.77 extend not only to persons who voluntarily
register under the identification program, but also to qualified patients and
primary caregivers, it impermissibly amends the Act. The Court did not, however,
sever Section 11362.77 from the Program finding that the appropriate remedy
is to disallow only its unconstitutional application.
This ruling is significant to law enforcement and prosecuting agencies throughout
the State. Based on the Court’s ruling, the permissible amount of marijuana
that a qualified patient or primary caregiver may posses or cultivate would
depend on personal needs, as recommended verbally or in writing by a physician.
Because the Act provides limited immunity from criminal convictions, persons
protected by the Act may raise this defense if prosecuted.
For further information on this case or medical marijuana laws, please contact
Ruthann Ziegler or Ellin
Davtyan.
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