Baniani

Defendant, a founding member of a medical marijuana cooperative, was charged with a sale of marijuana (Health & Saf. Code, § 11360, subd. (a); all further undesignated statutory references are to this code) and possession of marijuana for sale (§ 11359). The first jury was unable to reach a verdict, splitting six to six on the sales charge and nine to three for not guilty on the possession for sale charge. Defendant was permitted a defense under the Medical Marijuana Program Act (MMPA; § 11362.7 et seq.) in that trial. On retrial, he was denied the defense. The second jury was still unable to reach a verdict on the sales charge, but convicted defendant of possessing marijuana for sale. Because we find he was entitled to a defense under the MMPA and the error in precluding the defense was prejudicial, we reverse.

I

FACTS AND PROCEDURE

A. Procedural Background

Defendant was charged in an information with a sale of marijuana on March 23, 2010 (§ 11360, subd. (a); count one), and possession of marijuana for sale on April 7, 2010 (§ 11359; count two). His defense was that he had a physician’s recommendation to use medical marijuana, he ran a medical marijuana cooperative…