Mentch

The Compassionate Use Act of 1996 (Act; Health & Saf. Code, § 11362.5, added by voter initiative, Prop. 215, Gen. Elec. (Nov. 5, 1996)) provides partial immunity for the possession and cultivation of marijuana to two groups of people; qualified medical marijuana patients and their primary caregivers. We consider here who may qualify as a primary caregiver. We hold that a defendant whose caregiving consisted principally of *278 supplying marijuana and instructing on its use, and who • otherwise only sporadically took some patients to medical appointments, cannot qualify as a primary caregiver under the Act and was not entitled to an instruction on the primary caregiver affirmative defense. We further conclude that nothing in the Legislature’s subsequent 2003 Medical Marijuana Program (Health & Saf. Code, § 11362.7 et seq.) alters this conclusion or offers any additional defense on this record. Accordingly, we reverse the Court of Appeal.

Factual and Procedural Background

In 2003, Roger William Mentch was arrested and charged with the cultivation of marijuana (Health & Saf. Code, § 11358) 1 and its possession for sale (§ 11359).

Prosecution Evidence

Heidi Roth, a…

I entirely agree with, and have signed, the majority opinion. I write separately to underscore the importance of an issue that we asked the parties to brief but that, due to our holding on the merits of the compassionate use defense, we do not have to decide in this case.

In People v. Mower (2002) 28 Cal.4th 457 [ 122 Cal.Rptr.2d 326 , 49 P.3d 1067 ], we held that the defendant has the burden to raise a reasonable doubt regarding the compassionate use defense. As the majority opinion notes, the trial court instructed the jury on the compassionate use defense by modifying the standard CALJIC instruction. The instruction included this statement: “ ‘To establish the defense of compassionate use, the burden is upon the defendant to raise a reasonable doubt as to guilt....’” (CALJIC No. 12.24.1 (2004 rev.) (7th ed. 2003), quoted in maj. opn., ante, at pp. 281-282, fn. 4.) The standard CALCRIM instruction, by contrast, does not place any burden whatever on the defendant. Instead, it states, “The People have the burden of proving beyond a reasonable doubt that the defendant was not authorized to possess or transport marijuana for medical purposes. If the People have not *293 met this…