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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.