Jones

Charged with cultivating marijuana (Health & Saf. Code, § 11358), defendant William Ira Jones testified at a pretrial hearing under Evidence Code section 402 (hereafter section 402) that when he asked his physician whether he should try marijuana for his migraine headaches, his physician said, “It might help, go ahead.” Despite this testimony, the trial court precluded defendant from presenting a defense under the Compassionate Use Act of 1996 (Health & Saf. Code, § 11362.5; also known as Proposition 215) at trial because the court concluded there was “nothing to indicate that the doctor approved” defendant’s marijuana use.

On appeal from an order granting probation after the trial court found him guilty of the cultivation charge, defendant contends the trial court erred in refusing to allow him to present his Compassionate Use Act defense to a jury. We agree in light of the fact that under our Supreme Court’s decision in People v. Mower (2002) 28 Cal.4th 457, 481 [ 122 Cal.Rptr.2d 326 , 49 P.3d 1067 ], a defendant need only raise a reasonable doubt whether he or she qualifies for the defense.

Under the Compassionate Use Act, the statute forbidding the cultivation of…

I agree that defendant’s conviction must be reversed: Under the standard established by the California Supreme Court in People v. Mower (2002) 28 Cal.4th 457, 481 [ 122 Cal.Rptr.2d 326 , 49 P.3d 1067 ], defendant’s proffered evidence that his physician told him to “go ahead” and try marijuana for his migraine headaches raises a reasonable doubt whether he had a physician’s approval for purposes of the Compassionate Use Act of 1996 (Compassionate Use Act; Health & Saf. Code, § 11362.5).

But I disagree with the majority’s construction of the term “approval” under the Compassionate Use Act. The majority concludes that “a physician gives his or her ‘approval’ of a patient’s marijuana use within the meaning of the Compassionate Use Act if the physician expresses to the patient a favorable opinion of marijuana use for treatment of the patient’s illness.” (Maj. opn. ante, at p. 344.)

However, the dictionary offers several definitions for the word “approval.” The definition of “approval” as a mere “favorable opinion” takes the broadest and loosest construction of the term, stretches the concept of “approval” beyond the purposes of the Compassionate Use Act, and will promote needless…

Charged with cultivating marijuana (Health & Saf.Code, § 11358), defendant William Ira Jones testified at a pretrial hearing under Evidence Code section 402 (hereafter section 402) that when he asked his physician whether he should try marijuana for his migraine headaches, his physician said, "It might help, go ahead." Despite this testimony, the trial court precluded defendant from presenting a defense under the Compassionate Use Act of 1996 (Health & Saf.Code, § 11362.5; also known as Proposition 215) at trial because the court concluded there was "nothing to indicate that the doctor approved" defendant's marijuana use.

On appeal from an order granting probation after the trial court found him guilty of the cultivation charge, defendant contends the trial court erred in refusing to allow him to present his Compassionate Use Act defense to a jury. We agree in light of the fact that under our Supreme Court's decision in People v. Mower (2002) 28 Cal.4th 457, 481 , 122 Cal.Rptr.2d 326 , 49 P.3d 1067 , a defendant need only raise a reasonable doubt whether he or she qualifies for the defense.

Under the Compassionate Use Act, the statute forbidding the cultivation of…