Peron

The People ex rel. Daniel E. Lungren, as Attorney General of the State of California, (the People) appeal from a trial court order which followed the enactment by initiative of Health and Safety Code section 11362.5, [1] and modified a preliminary injunction the trial court had granted prior to passage of that initiative.

We hold the modifying order is legally defective. It wrongly allows respondents Dennis Peron and Beth Moore to resume and continue conduct that was properly enjoined by the preliminary injunction and remains criminally proscribed by section 11360 after the enactment of section 11362.5. The trial court's error was further compounded by the failure of its order to properly and legally define the conduct to be enjoined.

We, therefore, will order vacation of the order of modification and reinstatement of the preliminary injunction in effect prior to the modification.

Section 11360(a) provides that every person who "transports, imports into this state, sells, furnishes, administers, or gives away" any marijuana is guilty of a felony. Sections 11357 and 11358, respectively, prohibit the possession and the cultivation of marijuana; section…

The People ex rel. Daniel E. Lungren, as Attorney General of the State of California, (the People) appeal from a trial court order which followed the enactment by initiative of Health and Safety Code *1386 section 11362.5, 1 and modified a preliminary injunction the trial court had granted prior to passage of that initiative.

We hold the modifying order is legally defective. It wrongly allows respondents Dennis Perón and Beth Moore to resume and continue conduct that was properly enjoined by the preliminary injunction and remains criminally proscribed by section 11360 after the enactment of section 11362.5. The trial court’s error was further compounded by the failure of its order to properly and legally define the conduct to be enjoined.

We, therefore, will order vacation of the order of modification and reinstatement of the preliminary injunction in effect prior to the modification.

I. Facts and Procedural History

Section 11360(a) provides that every person who “transports, imports into this state, sells, furnishes, administers, or gives away” any marijuana is guilty of a felony. Sections 11357 and 11358, respectively, prohibit the possession and the cultivation of…

I concur in the judgment on the sole ground that respondents are not “primary caregivers” within the meaning of Health and Safety Code section 11362.5.

I think it unnecessary in this case to determine whether the sale and furnishing of marijuana remain absolutely prohibited after the enactment of Proposition 215.

By enacting that proposition, the voters of this state sought “[t]o ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.” (Health & Saf. Code, § 11362.5, subd. (b)(1)(A).) The “right to obtain” marijuana is, of course, meaningless if it cannot legally be satisfied.

The majority does not say qualified users may not obtain marijuana but it does say no one has the right to sell or furnish it to them, which is the functional equivalent. Obtaining marijuana from another may, however, be the only…