When does a person qualify as a caregiver under Californa's medicinal marijuana laws? The Supreme Court ruled he or she must have provided patients some previous other form of caregiving in order to qualify as a "primary caregiver" and be immune from prosecution for growing or selling the drug. The CaliforniaSupreme Court unanimously ruled that a Santa Cruz County man whose caregiving consisted principally of supplying marijuana and instructing on its use, and who otherwise only sporadically took some patients to medical appointments, was not entitled to a jury instruction on the affirmative defense - meaning that he does not get the jury to even consider it.

Defendant had been arrested in 2003 and charged with cultivation of marijuana and possession for sale after sheriffs deputiesacting on a tip from a bank teller who said thatsuspect made several cash deposits of more than $2,000 each over a three-month period in small bills smelling strongly of marijuanafound 190 plants, plus other drugs and firearms, during a search of his residence.

Defendant, who had a medical marijuana recommendation for colitis, dysphoria, and depression, said that he smoked about four marijuana cigarettes per day for medicinal purposes. However, the investigators concluded the operation was primarily a for-profit commercial venture afterdefendant admitted he sold the drug to five other medical marijuana users.

At trial,Defendant asserted that Californias Compassionate Use Act of 1996which provides partial immunity for the possession and cultivation of marijuana by qualified patients and their primary caregiversshielded him from prosecution because as he was the other users primary caregiver insofar as he had consistently assumed responsibility for their health by providing them medical marijuana upon a doctors recommendation or approval.

The act defines a primary caregiver as the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, or safety of that person.

The trial judge, despite grantingdefense request to instruct the jury that he was partially immune as a qualified patient, declined to instruct the jury on immunity as a primary caregiver after concluding that the evidence was insufficient to showdefendant had provided such services, and the jury convicted him.

The appelate court explained thatdefendantwas not entitled to the instruction because he had failed to satisfy both halves [of the definition]the designee clause and the responsibility clause.Examining the latter, the justice explained that a defendant asserting primary caregiver status must prove at a minimum that he or she (1) consistently provided caregiving, (2) independent of any assistance in taking medical marijuana, (3) at or before the time he or she assumed responsibility for assisting with medical marijuana.

Explainingthat defendants evidence failed to demonstrate satisfaction of each of the three aspects,the revieiwng courtconcluded that the trial court had ruled correctly because the act simply does not provideprotection where the provision of marijuana is itself the substance of the relationship.

The court also rejected defendants argument that the 2003 enactment of the Medical Marijuana Programwhich provides a defense to similar charges for those who give assistance to patients and primary caregivers in administering medical marijuana, and acquiring the skills necessary to cultivate or administer itimmunized his conduct.

The Defendant, to the extent he assisted in administering, or advised or counseled in the administration or cultivation of, medical marijuana, could not be charged with cultivation or possession for sale on that sole basis, she wrote. It does not meanhe could not be charged with cultivation or possession for sale on any basis; to the extent he went beyond the immunized range of conduct, i.e., administration, advice, and counseling, he would, once again, subject himself to the full force of the criminal law.

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