Citation 45 Cal.4th 274 original opinion
45 Cal.4th 308 b modification
People v. Mentch
Petition for review after the Court of Appeal reversed a judgment of conviction of criminal offenses. This case includes the following issues: (1) Should the trial court have instructed the jury, as requested, on the "primary caregiver" affirmative defense under the Compassionate Use Act (Health & Saf., Code, section 11362, subd. (e))? (2) If so, what is the standard of review for such instructional error? (3) Is the defendant's burden to raise a reasonable doubt regarding the compassionate use defense a burden of producing evidence under Evidence Code section 110 or a burden of proof under Evidence Code section 115? (4) Should the trial court instruct the jury on the defendant's burden to raise a reasonable doubt and, if so, how?
Filed 12/17/08
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S148204
v.
) Ct.App.
6
H028783
ROGER WILLIAM MENTCH,
Santa Cruz County
Defendant and Appellant. )
Super.
Ct.
No.
07429
ORDER MODIFYING OPINION
THE COURT:
The People’s request for modification of the court’s opinion filed herein on
November 24, 2008, is granted. It is ordered that, at page 6 of the filed opinion,
footnote 3 is modified to read as follows:
The Act extends limited immunity from state prosecution for
cultivation or possession to both qualified patients and their
designated “primary caregiver[s].” (§ 11362.5, subd. (d).)
On the court’s own motion, a new footnote 5 is ordered inserted after the
partial paragraph at the top of page 11 of the filed opinion that ends with “. . . to
bless prior use].)” The footnote shall read as follows:
In holding that the assumption of primary caregiver
responsibilities cannot apply retroactively to immunize prior
cultivation or possession of marijuana, we do not suggest it
would not apply prospectively. Defendants who show they
satisfied all other prerequisites for primary caregiver status
for a given patient at some point after the onset of providing
marijuana may avail themselves of the defense going forward,
even if they remain subject to prosecution for actions taken
prior to assumption of a primary caregiver role.
All subsequent footnotes shall be renumbered accordingly. This
modification does not affect the judgment.
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S148204
v.
) Ct.App.
6
H028783
ROGER WILLIAM MENTCH,
Santa Cruz County
Defendant and Appellant. )
Super.
Ct.
No.
07429
ORDER MODIFYING OPINION
THE COURT:
The People’s request for modification of the court’s opinion filed herein on
November 24, 2008, is granted. It is ordered that, at page 6 of the filed opinion,
footnote 3 is modified to read as follows:
The Act extends limited immunity from state prosecution for
cultivation or possession to both qualified patients and their
designated “primary caregiver[s].” (§ 11362.5, subd. (d).)
On the court’s own motion, a new footnote 5 is ordered inserted after the
partial paragraph at the top of page 11 of the filed opinion that ends with “. . . to
bless prior use].)” The footnote shall read as follows:
In holding that the assumption of primary caregiver
responsibilities cannot apply retroactively to immunize prior
cultivation or possession of marijuana, we do not suggest it
would not apply prospectively. Defendants who show they
satisfied all other prerequisites for primary caregiver status
for a given patient at some point after the onset of providing
marijuana may avail themselves of the defense going forward,
even if they remain subject to prosecution for actions taken
prior to assumption of a primary caregiver role.
All subsequent footnotes shall be renumbered accordingly. This
modification does not affect the judgment.
Opinion Information
| Date: | Citation: | Docket Number: | Category: | Status: |
| Wed, 12/17/2008 | 45 Cal.4th 274 original opinion 45 Cal.4th 308 b modification | S148204M | Review - Criminal Appeal | closed; remittitur issued |
Parties
| 1 |
Americans for Safe Access (Amicus curiae) Represented by Joseph David Elford Americans for Safe Access 1322 Webster Street, Suite 208 Oakland, CA |
| 2 |
Conant, Marcus A. (Amicus curiae) Represented by Daniel N. Abrahamson Attorney at Law 819 Bancroft Way Berkeley, CA |
| 3 |
Melamede, Robert J. (Amicus curiae) Represented by Daniel N. Abrahamson Attorney at Law 819 Bancroft Way Berkeley, CA |
| 4 |
Mentch, Roger William (Defendant and Appellant) Represented by Lawrence A. Gibbs Attorney at Law P.O. Box 7639 Berkeley, CA |
| 5 |
The People (Plaintiff and Respondent) Represented by Michele Joette Swanson Office of the Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA |
| 6 |
Uelmen, Gerlad F. (Amicus curiae) Represented by Daniel N. Abrahamson Attorney at Law 819 Bancroft Way Berkeley, CA |
| Disposition | |
| Nov 24 2008 | Opinion: Reversed |
| Dockets | |
| Nov 20 2006 |
Petition for review filed The People, Respondent by Michele J. Swanson, counsel |
| Nov 21 2006 | Record requested |
| Nov 22 2006 |
Received Court of Appeal record one file jacket/briefs/accordian file |
| Jan 11 2007 |
Time extended to grant or deny review The time for granting or denying review in the above-entitled matter is hereby extended to and including February 16, 2007, or the date upon which review is either granted or denied. |
| Feb 7 2007 |
Petition for review granted (criminal case) In addition to the issues presented in the petition for review, the parties are directed to brief the additional question whether the defendant's burden to raise a reasonable doubt regarding the compassionate use defense (see People v. Mower (2002) 28 Cal.4th 457) is a burden of producing evidence under Evidence Code section 110 or a burden of proof under Evidence Code section 115. (See, e.g., Evid. Code, ?? 500, 501, 502, 550, and the Law Revision Commission Comments thereto; see also Pen. Code, ? 189.5 and cases interpreting it, including People v. Deloney (1953) 41 Cal.2d 832, 841-842, People v. Cornett (1948) 33 Cal.2d 33, 42, and People v. Loggins (1972) 23 Cal.App.3d 597; and People v. Frazier (2005) 128 Cal.App.4th 807, 816-822.) In this regard, the parties should also discuss whether the trial court should instruct the jury on the defendant's burden to raise a reasonable doubt and, if so, how. (Compare CALJIC No. 12.24.1 (2005 Revision) with Judicial Council of Cal. Crim. Jury Instns. (2006-2007), CALCRIM No. 2363.) votes: George, C.J., Kennard, Baxter, Werdegar, Chin & Corrigan, JJ. |
| Feb 16 2007 |
Counsel appointment order filed Upon request of appellant for appointment of counsel, Lawrence Gibbs is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date respondent's opening brief on the merits is filed. |
| Mar 1 2007 |
Request for extension of time filed 31 day extension to April 9, 2007, to file opneing brief on the merits. |
| Mar 19 2007 |
Extension of time granted On application of respodent and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including April 9, 2007. |
| Mar 28 2007 |
Request for extension of time filed 30 day extension to May 9, 2007, to file opneing brief on the merits. |
| Apr 9 2007 |
Extension of time granted On application of respondent and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including May 9, 2007. No further extension are contemplated. |
| May 9 2007 |
Request for extension of time filed to file the opening brief on the merits, to May 11 the People, respondent |
| May 10 2007 |
Opening brief on the merits filed The People, respondent Michele J. Swanson, Counsel |
| May 10 2007 |
Extension of time granted On application of respondent and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including May 11, 2007. No further extensions of time will be granted. |
| Jun 8 2007 |
Request for extension of time filed by appellant requesting a 30-day extension to and including July 8, 2007, to file appellant's answer brief on the merits. |
| Jun 18 2007 |
Extension of time granted On application of appellant and good cause appearing, it is ordered that the time to serve and file appellant's answer brief on the merits is hereby extended to and including July 8, 2007. |
| Jul 5 2007 |
Request for extension of time filed to August 7, 2007 to file answer brief on the merits. |
| Jul 16 2007 |
Extension of time granted On application of appellant and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including August 7, 2007. |
| Aug 6 2007 |
Request for extension of time filed to August 13, 2007 to file answer brief on the merits. |
| Aug 10 2007 |
Extension of time granted On application of appellant and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including August 13, 2007. No further extensions are contemplated. |
| Aug 13 2007 |
Answer brief on the merits filed Roger W. Mentch, appellant Lawrence A. Gibbs, Counsel |
| Aug 13 2007 |
Motion to dismiss filed (non-AA) Roger W. Mentch, appellant Lawrence A. Gibbs, Counsel |
| Sep 4 2007 |
Reply brief filed (case fully briefed) The People, respondent Michele J. Swanson, Deputy Attorney General |
| Sep 4 2007 |
Opposition filed Respondent's Opposition to Motion to Dismiss Review. |
| Oct 3 2007 |
Received application to file Amicus Curiae Brief Americans for Safe Access, non-party by Joseph D. Elford, Counsel |
| Oct 3 2007 |
Received application to file Amicus Curiae Brief Marcus A. Conant, M.D.; Robert J. Melamede, Ph.D, and Gerald F. Uelman, non-parties by Daniel Abrahamson, Counsel |
| Oct 5 2007 |
Permission to file amicus curiae brief granted The application of Marcus A. Conant, M.D., Robert J. Melamede, Ph.D, and Gerald F. Uelmen for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Oct 5 2007 |
Permission to file amicus curiae brief granted The application of American for Safe Access for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Oct 5 2007 |
Amicus curiae brief filed Marcus A. Conant, M.D., Robert J. Melamede, Ph.D, and Gerald F. Uelman in support of respondent. by Daniel Abrahamson, Counsel |
| Oct 5 2007 |
Amicus curiae brief filed Americans For Safe Access in support of respondent by Joseph D. Elford, Counsel. |
| Nov 15 2007 |
Compensation awarded counsel Atty Gibbs |
| Aug 20 2008 |
Case ordered on calendar to be argued Tuesday, October 7, 2008, at 1:30 p.m., in Riverside County |
| Aug 28 2008 |
Motion denied Respondent Roger Mentch's motion to dismiss, filed August 13, 2007, is denied. Respondent Roger Mentch's alternative motion seeking leave to file supplemental briefing is also denied. In denying these motions, the court does not intend to foreclose the parties from discussing at oral argument, as they see fit, the effect of the provisions of the Medical Marijuana Program, Health and Safety Code section 11362.7 et seq., on the question presented. |
| Sep 2 2008 |
Request for Extended Media coverage Filed The California Channel by James Gualtieri |
| Sep 5 2008 |
Request for Extended Media coverage Granted The request for media coverage, filed by the California Channel on September 2, 2008, is granted, subject to the conditions set forth in rule 1.150, of the California Rules of Court. |
| Sep 25 2008 |
Received: Respondent's additional authorities for oral argument |
| Sep 26 2008 |
Received: Appellant's additional authorities for oral argument |
| Sep 29 2008 |
Received: "Appellant's Supplemental Brief" |
| Oct 3 2008 |
Request for Extended Media coverage Granted The request for extended media coverge of the Supreme Court's Oral Argument Special Session on October 7 and 8, 2008, filed on October 1, 2008, by The Desert Sun to serve as pool photographer is granted, subject to the conditions set forth in rule 1.150, California Rules of Court. |
| Oct 3 2008 |
Request for Extended Media coverage Granted The request for extended media coverage of the Supreme Court's Oral Argument Special Session on October 7 and 8, 2008, filed by the California State University, San Bernardino-Palm Desert Campus photographer on September 26, 2008, is granted, subject to the conditions set forth in rule 1.150, California Rules of Court. |
| Oct 7 2008 | Cause argued and submitted |
| Nov 21 2008 | Notice of forthcoming opinion posted |
| Nov 24 2008 |
Opinion filed: Judgment reversed The judgment of the court of appeal is reversed. Majority opinion by Werdegar, J. -----joined by George, C.J., Kennard, Baxter, Chin, Moreno, Corrigan, JJ. Concurring Opinion by Chin, J. -- joined by Corrigan, J. |
| Nov 25 2008 |
Request for modification of opinion filed The People, plaintiff and respondent Michelle Swanson, Dep. A.G. |
| Dec 17 2008 |
Opinion modified - no change in judgment THE COURT: The People's request for modification of the court's opinion filed herein on November 24, 2008, is granted. It is ordered that, at page 6 of the filed opinion, footnote 3 is modified to to read as follows: The Act extends limited immunity from state prosecution for cultivation or possession to both qualified patients and their designated "primary caregiver[s}." (? 11362.5, subd. (d).) On the court's own motion, a new footnote 5 is ordered inserted after the partial paragraph at the top of page 11 of the filed opinion that ends with ". . . to bless prior use].)" The footnote shall read as follows: In holding that the assumption of primary caregiver responsibilities cannot apply retroactively to immunize prior cultivation or possession of marijuana, we do not suggest it would not apply prospectively. Defendants who show they satisfied all other prerequisites for primary caregiver status for a given patient at some point after the onset of providing marijuana may avail themselves of the defense going forward, even if they remain subject to prosecution for actions taken prior to assumption of a primary caregiver role. All subsequent footnotes shall be renumbered accordingly. This modification does not affect the judgment. Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno and Corrigan, JJ. |
| Dec 17 2008 |
Request for modification granted The opinion is modified. |
| Dec 23 2008 |
Compensation awarded counsel Atty Gibbs |
| Jan 15 2009 | Remittitur issued (criminal case) |
| Feb 4 2009 |
Motion filed (non-AA) to recall the remittitur Roger Mentch, appellant Lawrence Gibbs, ccounsel |
| Feb 25 2009 |
Order filed The motion to recall the remittitur, filed February 4, 2009, is denied without prejudice to appellant Roger Mentch filing an application in the Court of Appeal to recall that court's remittitur (Cal. Rules of Court, rule 8.272(c)), and without prejudice to the Court of Appeal's power to recall its remittitur and conduct such "further proceedings in the Court of Appeal" (id., rule 8.272(b)(2)(A)) as it may deem warranted. |
| Aug 12 2009 |
Returned record 2 doghouses via OnTrac Note: The two doghouses are expected to be returned back to us from CA 6 in two weeks. |
| Briefs | |
| May 10 2007 |
Opening brief on the merits filed |
| Aug 13 2007 |
Answer brief on the merits filed |
| Sep 4 2007 |
Reply brief filed (case fully briefed) |
| Oct 5 2007 |
Amicus curiae brief filed |
| Oct 5 2007 |
Amicus curiae brief filed |
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website.
