Stanford Law School - Robert Crown Law Library

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.

---

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?

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

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