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GEORGE GASCON (SBN 182345) District Attorney JOHN ULLOM (SBN 249141) Assistant District Attorney NICOLE R. CROSBY (SBN 256238) Assistant District Attorney Office of the District Attorney 850 Bryant Street, Third Floor San Francisco, California 94103 Telephone: (415) 553-1048 Facsimile: (415) 553-1700

F I LED San Fr~na/~flr; (;CJ4tHy SUpClrior

ENDORSED

Cour!

SUPERIOR COURT OF CALIFORNIA CITY AND COUNTY OF SAN FRANCISCO

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THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff, vs.

) ------) ) PEOPLE'S MEMORANDUM OF ) POINTS AND AUTHORITES RE: ) CONTINUED ILLEGALITY OF

) SELLING MARIJUANA
)

) Date: ) Time: ) Dept.:

1TO:~HO:~:~::~:GE
-COUNSEL OF RECORD:

OFTHES~EIDORCOURT, DEFENDANT
AND ESQ., DEFENSE of points and authorities

The People respectfully submit the following memorandum

regarding the continued illegality of selling marijuana and the requirement that members of an association must all participate directly in the "cultivation" of marijuana to enjoy the

protection of Health and Safety Code section 11362.775: INTRODUCTION Despite the continued proscription of marijuana sales under California law, the absence of any statute or case immunizing marijuana sales, and the lack of any expressed intention of the part of voters or the Legislature to legalize marijuana sales, a marijuana mega-myth has been perpetuated: selling marijuana over-the-counter at marijuana selling outlets is legal.

While California's medical marijuana laws may be complex, the law is clear that marijuana
POINTS AND AUTHORITIES RE: MARIJUANA SALES IMMUNITY - 1

sales are illegal. The semantogenic shell game that continues to be played with medical
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marijuana immunities does not change that conclusion.

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POINTS AND AUTHORITIES I. MARIJUANA SALES ARE ILLEGAL

Any analysis of criminal liability for specific conduct must begin with the analysis of the code sections criminalizing that conduct. sections 11359 and 11360 11359 makes possession for sale of marijuana a felony:

Specifically as to Health and Safety Code'

Every person who possesses for sale any marijuana, except as otherwise provided by law, shall be punished by imprisonment in the state prison. 11360(a) declares a variety of conduct to be felonious: Except as otherwise provided by this section or as authorized by law, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any marijuana shall be punished by imprisonment in the state prison for a period of two, three or four years. Section 11359 expressly criminalizes the conduct of possessing marijuana for sale, and section 11360(a) expressly criminalizes the conduct of selling marijuana. Neither of these statutes have been overturned or rescinded.
II. CALIFORNIA'S MEDICAL MARIJUANA STATUTES

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In 1996, California voters passed the CUA, as codified in section 11362.5. Section 11362.5, subdivision (d), provides limited affirmative defenses to marijuana patients and their primary caregivers for personal possession, individual cultivation, and medically related transportation. (See, People v. Mower (2002) 28 Ca1.4th457; People v. Trippet (1997) 56 Cal.App.4th 1532.) The voter's intent in passing the CUA has been established by case law. [B]oth the statute's drafters and the proponents took pains to emphasize that, except as specifically provided in the proposed statute, neither relaxation much less evisceration of the state's marijuana laws was envisioned... [I]n the ballot pamphlet's rebuttal, [District Attorney Hallinan, a CUA proponent, stated] that the proposition "only allows marijuana to be grown
All further references are to the Health and Safety Code unless POINTS AND AUTHORITIES

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otherwise specified.

RE: MARIJUANA SALES IMMUNITY - 2

for a patient's personal use. Police officers can still arrest anyone who grows too much, or tries to sell it." (Trippet, supra, at p. 1546.)

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[T]he plainly expressed intent of [the CUA was] continuing the proscriptions of marijuana 'sale and possession for sale. (People ex rei Lungren v. Peron (1997), 59 Cal.App.4th 1383, 1397.) In light of this "plainly expressed intent", the California Legislature enacted the MMP,

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as codified in sections 11362.7, et seq., in 2003.

While the MMP further specified conduct

immunized from criminal liability, the MMP's legislative history also contained the following caveat: "Nothing in [the MMP] shall amend or change Proposition 215 ... " (Sen. Rules Com., Off. of Sen. Floor Analyses, analysis of Sen. Bill No. 420 (2003 Reg. Sess.) as

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amended Sept. 9,2003. p. 6.) As the Court of Appeal recently stated: "[The MMP] was designed to implement, not amend the CUA" (People v. Hochanadel176 CalApp4th 997, p. 1013)

If the MMP legalized marijuana sales, the MMP would be in direct conflict with the "plainly expressed intent" of the CUA. As is apparent from the plain language of the MMP, and the legislative history, there is no conflict between the MMP and the CUA because marijuana sales have not been immunized. III. IMMUNITY UNDER THE CUA: 11362.5(d)

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Section 11362.5, subdivision (d), 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 a patient's 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. By the express language of section 11362.5, subdivision (d), immunizes a patient or

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primary caregiver who engaged in (1) personal possession; and (2) personal cultivation of
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marijuana for medical purposes.

Trippet, supra, interpreted subdivision (d) to necessarily

RE: MARIJUANA SALES IMMUNITY - 3

POINTS AND AUTHORITIES

include an implied immunity for medically related marijuana transportation.

1

Thus, CUA

immunity is limited to patients and primary caregivers who engage in the following conduct:
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1. Medically-related Personal Possession; 2. Medically-related Personal Cultivation; and 3. Medically-related Personal Transportation.

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Peron, supra, affirmed that marijuana sales remained illegal under the CUA:
The sale and possession for sale of marijuana continue to be proscribed by sections 11360(a) and 11359 following enactment of section 11362.5. The lack of profit to the seller or possessor does not exempt such activities from prosecution .... (Peron, supra, 59 Cal.AppAth at p. 1389.) IV. IMMUNITY UNDER THE MMP: 11362.71(e), 11362.765,11362.775

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1. People v. Mentch (2008) 45 Cal.4th 274

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In November 2008, the California Supreme Court issued a landmark medical marijuana I
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decision in People v. Mentch, supra, 45 Ca1.4th 274 (hereafter "Mentch"). Supreme Court focused on the patient-primary caregiver relationship.

In Mentch, the

The effect of the Court's

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ruling in Mentch was to further define primary caregiver immunity (and thereby limit) which individuals are entitled to immunity for supplying medical marijuana. Yet, Mentch did more than simply defining primary caregiver immunity, Mentch also provided a binding framework of statutory construction for MMP immunities. 2. Interpreting MMP Immunities in Light of Mentch

Working through the Mentch statutory construction of MMP immunities can only result in the conclusion that marijuana sales remain illegal.
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While the [MMP] does convey additional immunities against cultivation and possession for sale charges to specific groups of people, it does so only for specific actions; it does not provide globally that the specified groups of people may never be charged with cultivation or possession for sale. (Id. at p. 289. Emphasis added.)

In considering the binding authority of case law, both the holding and the rational for that holding are binding: "When an opinion issues for the Court, it is not only the result but also those portions of the opinion necessary to that result by whi~h we are bound." Seminole Tribe of Florida v. Florida (1996) 517 U.S. 44, 66-67.
POINTS AND AUTHORITIES RE: MARIJUANA SALES IMMUNITY - 4

The Supreme Court engaged in a step by step analysis of section 11362.765 (of the MMP) to interpret what conduct is immunized from criminal liability. [T]he immunities conveyed by section 11362.765 have three defining characteristics: (1) they each apply only to a specific group of people; (2) they each apply only to a specific range of conduct; and (3) they each apply only against a specific set of laws. (Jd. at p. 289, emphasis added.) Applying Mentch

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"three defining characteristics"

analysis to the three immunity

statutes of the MMP (sections 11362.71, subdivision (e); 11362.765; and 11362.775), none can
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be read to convey immunity for the "specific conduct" of selling marijuana.

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3. Immunity Under 11362.71(e)

Section 11362.71, subdivision (e), provides in pertinent part:
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No person or designated primary caregiver in possession of a valid identification card shall be subject to arrest for possession, transportation, delivery, or cultivation of medical marijuana in an amount established pursuant to this article ... (Emphasis added.) The immunity from arrest provided by section 11362.71, subdivision (e), is limited to the following specific conduct ofMMP ID card holdersr' 1.

2.

3.
4.

Personal possession of medical marijuana; Personal transportation of medical marijuana; Delivery of medical marijuana; and Cultivation of medical marijuana.

The specific conduct of selling marijuana is not immunized from arrest.

4. Immunities under 11362.765(a)/(b)

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Section
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11362.765,

subdivision

(a), generally

provides

immunity

from criminal

liability under all marijuana statutes if and only if a defendant's conduct falls within the range

Under section 11362.71, MMP ID cards are issued by the California Department of Public Health through local health departments. (See, 11362.71.) POINTS AND AUTHORITIES RE: MARImANA SALES IMMUNITY - 5

of conduct set forth in section 11362.765, subdivision (b).4 Section 11362.765, subdivision
1

(b), provides in pertinent part:

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Subdivision (a) shall apply to all of the following: (1) A qualified patient or a person with an identification card who transports or processes marijuana for his or her own personal medical use. (2) A designated primary caregiver who transports, processes, administers, delivers, or gives away marijuana for medical purposes, in amounts not exceeding those established in subdivision (a) of Section 11362.77, only to the qualified patient of the primary caregiver, or to the person with an identification card who has designated the individual as a primary caregiver. (3) Any individual who provides assistance to a qualified patient or a person with an identification card, or his or her designated primary caregiver, in administering medical marijuana to the qualified patient or person or acquiring the skills necessary to cultivate or administer marijuana for medical purposes to the qualified patient or person. ( 11362.765(b).) In reference to section 11362.765, subdivision (b), the Mentch court stated: [S]ubdivision (b)(1) grants immunity . . . for specific conduct transportation or processing for personal use - that otherwise might have been criminal. .. The same is true of subdivision (b)(2) of section 11362.765, which likewise extends ... immunity for particular conduct -transportation, processing, administration, delivery, or donation - that might otherwise fall afoul of state law. [S]ubdivision (b)(3) of section 11362.765 grants immunity ... for specific

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conduct, namely, assistance in the administration of, or teaching how to cultivate, medical marijuana.
(Mentch, supra, 45 Cal.4th at p. 291, emphasis added.)

Thus, the immunities of section 11362.765, subdivisions (a) and (b) apply only to the following individuals who engage in the following specific conduct: 1. 2. 3.
4

PatientlPrimary Caregiver processing of medical marijuana; PatientlPrimary Caregiver transportation of medical marijuana; Primary Caregiver administration of medical marijuana to their patient;

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Section 11362.765, subdivision (a), also contains the following language: "nor shall anything in this section authorize any individual or group to cultivate or distribute marijuana for profit." Thus, for profit cultivation and distribution are expressly excluded from immunity. This qualification to MMP immunities does not mean that the opposite is also true (i.e. that all not-for-profit cultivation and distribution are immunized.) POINTS AND AUTHORITIES RE: MARIWANA SALES IMMUNITY - 6

1 2

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4. 5. 6. 7. marijuana.

Primary Caregiver delivery of medical marijuana to their patient; Primary Caregiver giving away medical marijuana to their patient; Any person assisting administration of medical marijuana to a patientr' and Any person assisting teaching how to cultivate/administer medical

The specific conduct of selling marijuana is not immunized for anyone.

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V. THE ONLY STAUTE UNDER CALIFORNIA LAW TO IMMUNIZE COMPENSATION TO ANY INDIVIDUAL IS 11362.765(c)

1. Under the Plain Language of the Statute, Receiving Compensation is Immunized for Primary Caregivers.
Section 11362.765, subdivision (c) provides:

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A primary caregiver who receives compensation for actual expenses, including reasonable compensation incurred for services provided to an
eligible qualified patient or person with an identification card to enable that person to use marijuana under this article, or for payment for out-of-pocket expenses incurred in providing those services, or both, shall not, on the sole basis of that fact, be subject to prosecution or punishment under Section 11359 or 11360. ( 11362.765(c), emphasis added.)

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Immunity under section 11362.765, subdivision (c), extends to the specific conduct of
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"receiving compensation" and is expressly limited to "primary caregivers."

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Within the context

of the primary caregiver-patient relationship, the following conduct is immunized: 1.

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Reasonable compensation for the services provided to enable the patient to use marijuana (i.e. being paid to grow marijuana.) Reasonable compensation for out-of pocket expenses incurred in providing those services (i.e. being reimbursed for costs incurred in growing marijuana.)

2.

(See, 11362.765, subdivision (c).) Accordingly, only a primary caregiver can be paid for his/her time growing marijuana for his/her patient. Only a primary caregiver can receive reimbursement for materials such as

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water, fertilizer, and equipment purchased to facilitate the cultivation process.

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"Administer" is defmed as "the direct application of a controlled substance, whether by injection, inhalation, ingestion, or any other means, to the body of a patient for his immediate needs .... " ( 11002.) POINTS AND AUTHORITIES RE: MARIJUANA SALES IMMUNITY - 7

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2. The Legislative History of 11362.765(c) Confirms That Compensation Immunity Was Purposely Limited To Primary Caregivers Only The MMP, as introduced in the California Senate, provided in pertinent part: [11362.765(c)] Any individual who receives reasonable compensation for services provided to an eligible qualified patient or person with an identification card to enable that person to use marijuana under this article, or for payment for out-of-pocketexpenses incurred in providing those services, or both, shall not, on the sole basis of that fact, be subject to prosecution or punishment under Section 11359 or 11360. (2003 California Senate Bill No. 420, California 2003-04 Regular Session (Version: Introduced), emphasis added.) Under the introduced version of the MMP, compensation to any individual was immunized. However, S.B. 420 was amended during the legislative process to change "any individual" to "a primary caregiver." This amendment to the language of the MMP during the legislative process is a tell tale sign of the Legislature's intent. An intent to limit the scope of MMP "compensation" immunity to primary caregivers, remains illegal. Outside of the patient-primary caregiver relationship, receiving compensation for cultivating and/or distributing marijuana

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3. There are no parallel "compensation" immunities anywhere else in the MMP "Where statutes involving similar issues contain language demonstrating the Legislature knows how to express its intent, ' "the omission of such provision from a similar statute concerning a related subject is significant to show that a different legislative intent existed with reference to the different statutes." , [Citation.]" (County of San Diego v.San Diego NORML (2008) 165 Cal.App.4th 798,825.) To posit that the Legislature expressly immunized compensation to primary caregivers (including actively refining the bill's language), but then only tacitly immunized marijuana sales without any reference to such an intention anywhere within the MMP's legislative history defies rules of statutory construction. There is no parallel compensation immunity for any other group of individuals anywhere within the MMP. Thus, there can be no immunity for anyone other than primary caregivers.

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POINTS AND AUTHORITIES RE: MARIJUANA SALES IMMUNITY - 8

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VI. GROUP CULTIVATION MARIJUANA SALES

IMMUNITY

UNDER 11362.775 DOES NOT INCLUDE

Group cultivation is immunized under section 11362.775 which provides in pertinent part:

Qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with
identification cards, who associate within the State of California in order collectively or cooperatively to cultivate marijuana (or medical purposes, shall not solely on the basis of-that fact be subject to state criminal sanctions ...

( 11362.775. Emphasis added.)

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Sections 11362.765 and 11362.775 were codified under at the same time, under the same
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legislation (Senate Bill 420), and with the same legislative history. Under the binding rational
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of Mentch, MMP immunity flows from being with the "specific group of individuals" who
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engage in "specific conduct."

Thus, to trigger immunity one must be a Qualified Patient;.

MMP ID Cardholder, or Primary Caregiver (i.e., a specific group of individuals) AND must associate in order to cultivate medical marijuana. Group cultivation immunity (also referred to There is no

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as Collective or Cooperative Immunity) is limited to the conduct of cultivation. provision for associating in order to sell medical marijuana. Additionally, while there is immunity for transporting, processing,

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delivering,

and

giving marijuana away to patients, parallel immunities within the group context do not exist. Nor is there immunity for paying one member (or a few members) of a group to cultivate for other members of that group. As discussed above, under the rules of statutory constructions, the "omission" of such immunities within the group cultivation context reflects the

Legislature's intent not to immunize such conduct. VII. RELIANCE IS MISPLACED ON PEOPLE V. URZICEANU TO JUSTIFY MARIJUANA SALES

Relying on People v. Urziceanu (2005) 132 Cal.App.4th 747 (hereafter "Urziceanu") to support the myth that medical marijuana sales are legal within the group cultivation context is flawed for two reasons: 1) the issue of marijuana sales was not specifically addressed by the

Urziceanu court; and 2) Urziceanu is read differently in light of Mentch. "[C]ases are not authority for propositions not considered." (People v.Avila (2006) 38 Cal.4th 491,566.)

POINTS AND AUTHORITIES

RE: MARIJUANA SALES IMMUNITY

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In Urziceanu, the court determined whether defendant Urziceanu was entitled to an

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MMP immunity instruction to a charge of conspiracy to sell marijuana in the context of a

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cultivation cooperative operation. At the conclusion of Urziceanu's trial, Urziceanu was acquitted of selling marijuana but convicted of conspiracy to sell marijuana. (Id. at 786.) Therefore, the MMP immunity issue before the court was limited to whether a defendant, who
had been acquitted of selling marijuana, was entitled to an MMP-defense instruction to the

charge of conspiracy to sell marijuana. In this context, the court held: "In supplemental briefing in this court, defendant argues that the Medical Marijuana Program Act provides him with a new defense to the charge of conspiracy to possess marijuana for sale. We conclude the law should be applied retroactively and it does provide defendant with a potential defense. We shall remand for a new trial ... "
(Id at 782.)

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--

-~.

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Urziceanu certainly would have been entitled to an MMP immunity instruction under these circumstances. To be entitled to present an affirmative defense to a jury, a defendant must merely be able to present substantial evidence of the defense. Yet, the jury's acquittal on the marijuana sales charge was an indication that the evidence against Urziceanu did not establish that Urziceanu acted as a principal (see, Penal Code section 31) in marijuana sales. If Urziceanu were able to show that his conduct was in fact limited to "associating, collectively or cooperatively, to cultivate' marijuana," he would have had a complete defense to all

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marijuana charges.
IB

Despite the fact that Urziceanu did not address the issue of whether marijuana sales are
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immunized under the MMP, the often quoted portion of the court's decision is as follows: [Section 11362.775's] specific itemization of the marijuana sales law indicates it contemplates the formation and operation of medicinal marijuana cooperatives that would receive reimbursement for marijuana and the services provided in conjunction with the provision of that marijuana.
(Id. at 785.)

To the extent that the language of Urziceanu implies that monetary transactions are immunized based on the statutory construction of 11362.775, this analysis was superseded by the Supreme Court's statutory construction of MMP immunities in Mentch. Along these lines, the Urziceanu analysis is based on the conclusion that the "specific itemization of the marijuana sales law" provides marijuana cooperatives with immunity for receiving

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POINTS AND AUTHORITIES

RE: MARIJUANA SALES IMMUNITY - 10

"reimbursement for marijuana and the services provided in conjunction with the provision of
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that marijuana."
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(Urziceanu, supra, at p. 785) In interpreting virtually identical language

under section 11362.765, subdivision (a),6 the Supreme Court in Mentch held: [The itemization of marijuana criminal statutes] identifies the statutory provisions against which the specified people and conduct are granted immunity.

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(Mentch, supra, 45 Ca1.4th at p. 291.)

Under the Mentch analysis, the itemization ofthe "marijuana sales law" does not immunize

the conduct of marijuana sales or marijuana reimbursement, the itemization provides protection
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from prosecution under the itemized statute when a protected individual engages in protected conduct. In other words: While the [MMP] does convey additional immunities against cultivation and possession for sale charges to specific groups of people, it does so only for specific actions ... (Id. at p. 290. Emphasis added.) Based upon the plain language of section 11362.775, patients, primary caregivers and MMP ID cardholders are immunized from prosecution under all marijuana criminal statutes (including section 11360) if, and only if, their specific conduct is limited to associating

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collectively or cooperatively to cultivate medical marijuana.

Group cultivation is immunized, nothing more. 7

The statute does not state

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associate "to sell medical marijuana" nor does it state associate "to distribute marijuana." The conduct of selling marijuana is not

specifically immunized conduct under section 11362.775, and, therefore, remains illegal. VIII. NOTHING IN THE MMP'S LEGISLATIVE mSTORY IMMUNITY FOR MARIJUANA SALES SUPPORTS

Section 1(b) of Stats. 2003, c. 875 (S.B. 420) (MMP codifying statute), provides:
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Section 11362.765, subdivision (a), provides in pertinent part: qualifying persons engaged in protected conduct "shall not be subject, on that sole basis, to criminal liability under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570." ( 11362.765(a).)

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Section 11362.775 provides in pertinent part: qualifying persons engaged in protected conduct "shall not solely on the basis of that fact be subject to state criminal sanctions under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570." ( 11362.775.) 7 Even if the "specific actions" immunized under section 11362.775 were interpreted to include the conduct of reimbursing overhead expenses, reimbursement of overhead expenses can be readily accomplished without selling marijuana. A variety of services and products (including housing, health services, recreation opportunities: educational supplies, art and music) are distributed every day by organizations that do not charge the end users fOJ their services and/or products. POINTS AND AUTHORITIES RE: MARIJUANA SALES IMMUNITY - 11

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SECTION 1 (b) It is the intent of the Legislature, therefore, to do all of the following: (1) Clarify the scope of the application of the act and facilitate the prompt identification of qualified patients and their designated primary caregivers in order to avoid unnecessary arrest and prosecution of these individuals and provide needed guidance to law enforcement officers. (2) Promote uniform and consistent application of the act among the counties within the state. (3) Enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects. (S.B.420.)

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Nothing in the Legislature's marijuana sales. The intention

statement of intent suggests any intention to legalize to "enhance access" through "collective, cooperative

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cultivation projects" was manifested in section 11362.775, a statute which immunizes group cultivation-as
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opposed

to the CUA's

individual

cultivation

immunity-but

does

not

immunize the conduct of marijuana sales. Immunizing marijuana sales would have been an intentionally giant leap in the law

given the Voters' express intent to maintain the proscription of marijuana sale. By 2003, the case law was unequivocal that the CUA did not immunize marijuana sales. "It is assumed that the Legislature has in mind existing laws when it passes a statute. [Citations omitted.] 'The failure of the Legislature to change the law in a particular respect when the subject is generally before it and changes in other respects are made is indicative of an intent to leave the law as it stands in the aspects not amended.

(Estate of McDill (1975)14 calJd 831, 837-838 quoting Cole v. Rush (1955) 45 Cal.2d
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345,355.) To read the MMP to mean that marijuana sales are immunized would be imputing a

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covert intention to the California Legislature on an issue of massive overt consequence California's laws governing controlled substances.

to

But the invitation to read in such an

intention to California's medical marijuana laws is nothing new. Having been invited to do the same with the CUA, the Peron court stated: "We cannot add to the initiative a provision legalizing marijuana sales, in the guise of legal interpretation or based upon the drafter's private intentions." (ld. at 1389 footnote 10.)

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POINTS AND AUTHORITIES

RE: MARIJUANA SALES IMMUNITY

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Had the Legislature intended marijuana sales to be legal the Legislature would have
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clearly immunized the conduct of "selling marijuana" within the MMP, or at the very least,
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clearly stated their intention within the Legislative History.

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IX. THE INTENT OF THE VOTERS THROUGH THE PASSAGE OF THE CUA WAS TO KEEP MARIJUANA SALES ILLEGAL AND ANY INTERPRETATION BY THE COURT THAT THE MMP REPRESENTS A LEGISLATIVE CHANGE TO THAT INTENT WOULD BE UNCONSTITUTIONAL

Article II, section 10, subdivision (c), of the California Constitution provides: The Legislature ... may amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without their approval. (Cal. Const., Art. II, 10(c).) An amendment to a voter approved initiative is defmed as follows:

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An "amendment" is "any change of the scope or effect of an existing statute, whether by addition, omission, or substitution of provisions, which does not wholly terminate its existence, whether by an act purporting to amend, repeal, revise, or supplement, or by an act independent and original in form, . . . ." [Citation.] (Knight v. Superior Court (2005) 128 Cal.App.4th 14,22.) As the Supreme Court recently observed in People v. Kelly (2010) 47 Cal.4th 1008: '[t]he purpose of California's constitutional limitation on the Legislature's power to amend initiative statutes is to 'protect the people's initiative powers by precluding the Legislature from undoing what the people have done, without the electorate's consent. ' [Citations.]' [quoting Proposition 103 Enforcement Project v. Quackenbush (1998) 64 Cal.AppAth 1473, 1484.] In this vein, decisions frequently have asserted that courts have a duty to " , "jealously guard" , " the people's initiative power, and hence to " , "apply a liberal construction to this power wherever it is challenged in order that the right" , " to resort to the initiative process" , "be not improperly annulled" , " by a legislative body. (Kelly, supra, at p. 1025. Citations omitted.)

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There is no indication that the Legislature expressly intended to amend the CUA by legalizing sales via the MMP. marijuana Even if the Legislature had a covert intention to legalize the

sales, given the Voters' express intent in passing the CUA--maintaining

POINTS AND AUTHORITIES

RE: MARIJUANA SALES IMMUNITY - 13

proscription of marijuana sales-- any such amendment of the CUA would improperly annul
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express intentions of the voters in passing the CUA.

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When invited to read immunity for marijuana sales into the CUA, the Peron court
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stated: We cannot condone the perpetuation of such a deception on those voters who enacted Proposition 215, relying on its ballot arguments and legislative digest assuring them that sales of marijuana would continue to be proscribed.
(Peron, supra, 59 CalAppAth at 1397-1398.)

The courts have protected the voters' intention by rejecting the argument that marijuana sales are legal as "a deception." The California Constitution continues to protect the voters from any backdoor annulment of their intention via a deceptive interpretation of the MMP--a

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law that was designed to "implement, not amend the CUA."

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x.

CONCLUSION

In Mentch, the California Supreme Court provided binding authority on how to interpret MMP immunities. MMP immunities must expressly immunize the individual seeking the immunity, and expressly immunize the conduct the individual engaged in. Marijuana sales are not immunized anywhere in the CUA or the MMP. To the extent that any such immunity might be inferred, it is not implied anywhere within the legislative history, and would unconstitutionally violate the express intent of the voters with the passage of the CUA. For all

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of these reasons, marijuana sales have been and continue to be illegal in California.

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Respectfully Submitted, GEORGE GASCON DiStriClzey

LLOM ant District Attorney

POINTS AND AUTHORITIES RE: MARIJUANA SALES IMMUNITY - 14

PROOF OF PERSONAL SERVICE I, the undersigned, declare:

I am, and at all times mentioned herein was, over eighteen years of age and not a party to
3

the above-entitled cause. I am employed at the Office of the District Attorney in the City and
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County of San Francisco, California. Francisco, California 94103. On

j ,

My business address is 850 Bryant, Suite 322, San

I served a true copy of the attached:

PEOPLE'S MEMORANDUM OF POINTS AND AUTHORITES RE: CONTINUED ILLEGALITY OF SELLING MARIJUANA by personally mailing a true copy, via U.S. Postal Service, to Streei
------

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I declare under penalty of perjury that the foregoing is true and correct. Executed on
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Francisco, California.

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Certified Law Clerk

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POINTS AND AUTHORITIES

RE: MARIJUANA SALES IMMUNITY - 15