Spark

In June of 2002, a jury found appellant guilty of cultivating marijuana (Health & Saf. Code, § 11358). His unsuccessful defense was based upon the Compassionate Use Act of 1996 (§ 11362.5), also known as Proposition 215, adopted by the California electorate as an initiative statute in November of 1996. Subdivision (d) of section 11362.5 states in pertinent part 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.” Appellant’s jury was instructed with the 1999 revision of CALJIC No. 12.24.1, which stated in part that, “[t]he defendant has the burden of proving by a preponderance of the evidence all of the facts necessary to establish the elements of this defense . . . .” Then on July 18, 2002, before appellant was sentenced, the California Supreme Court decided People v. Mower (2002) 28 Cal.4th 457 [ 122 Cal.Rptr.2d 326 , 49 P.3d 1067 ] (Mower). In Mower the court expressly rejected the argument that a defendant must prove a compassionate…