Mentch

Health and Safety Code section 11358 makes cultivating marijuana a crime. [1] However, at the General Election held on November 5, 1996, the electors approved Proposition 215, entitled Medical Use of Marijuana. Relevant here, the measure added section 11362.5, the Compassionate Use Act of 1996 (hereinafter the CUA). Subdivision (d) of section 11362.5 provides that 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 the patient upon the written or oral recommendation or approval of a physician. ( People v. Mower (2002) 28 Cal.4th 457, 463 , 122 Cal.Rptr.2d 326 , 49 P.3d 1067 .) In this case, among other things, we are asked to decide if appellant provided substantial evidence that he was a primary caregiver as defined by section 11362.5.

On March 11, 2005, a jury found appellant Roger William Mentch guilty of cultivation of marijuana (§ 11358, count one) and possession of marijuana for sale (§ 11359, count two). [2] Further, the jury found true an allegation that in the commission of these offenses appellant was armed with a…