Court of Appeal Affirms Marijuana Cultivation Conviction, Narrowly Construing California’s Medical Marijuana Immunities

The Medical Marijuana Program Act (“Act”) provides for limited immunity from state marijuana prohibitions.  In People .v Mitchell (April 29, 2014) — Cal. App.4th —, the California Court of Appeal held that the Act’s immunity provisions did not apply when a defendant was convicted of operating an indoor marijuana grow operation with the potential of generating over $2 million in annual revenue.


On January 28, 2010, Officer Jorge Cervantes (“Officer”) of the San Fernando Police Department arrived at a premises operated by Brian Mitchell (“Defendant”) to investigate a possible break-in.  The windows for the premises were covered with a black plastic material that concealed the interior.  The Officer saw broken glass and a broken door that had been forced open.  Once inside, the Officer discovered the Defendant’s marijuana grow operation.  The operation contained twenty-two 1,000 watt lights.  Opinion testimony at trial provided that such a grow operation would annually generate 319 pounds of marijuana worth $2.9 million.

Before constructing the marijuana grow operation, the Defendant obtained a medical marijuana card.  The Defendant also received a permit to operate a musical instrument manufacturing business at the premises. Although some evidence presented at trial showed that the Defendant had originally intended to start such a manufacturing business, the business never materialized.  Instead, the Defendant operated a grow operation designed to supply a for-profit medical marijuana collective, of which the Defendant was a member.

The Defendant was tried and convicted of illegal marijuana cultivation in Los Angeles Superior Court.  The Defendant appealed his conviction, alleging that immunities within the Act shielded him from criminal liability.


The Second District Court of Appeal (“Court”) upheld the Defendant’s conviction.  In its opinion, the Court noted that immunities the relied upon by the Defendant only apply to convictions under California’s marijuana cultivation statute.  The immunities do not apply to convictions under federal law.  As the Defendant was convicted under California law, the Court discussed the scope and applicability of the immunities.

The Defendant asserted that several immunities contained within Health and Safety Code Sections 11362.765 and 11362.775 shielded him from criminal liability.  The Court noted that the two sections were enacted by the Legislature as part of the Act, which was designed to clarify sections of Proposition 215, the 1996 initiative establishing medical marijuana in California.  The Court noted that the immunities should be construed narrowly, as it was not the intent of the voters or the Legislature to create a broad right to cultivate marijuana.

The Court held that the Section 11362.765 immunities were inapplicable because the size of the Defendant’s operation suggested the Defendant was not growing marijuana for his own personal use, the Defendant was not a primary caregiver, and the Defendant was not providing assistance to a qualified patient or a primary caregiver.  The Section 11362.775 immunity was found inapplicable by the Court because it only provides that persons shall not be convicted of marijuana cultivation “solely on the basis of” the fact that they “collectively or cooperatively” cultivate marijuana.  As the Defendant was not convicted of cultivating marijuana “solely because” of his involvement in a collective, the immunity was inapplicable.

What This Means To You

This decision illustrates the narrow scope of California’s medical marijuana cultivation immunities.  The decision further aids district attorneys and city attorneys seeking to prosecute persons engaging in large-scale medical marijuana cultivation operations.


Written by:

Published In:

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Kronick, Moskovitz, Tiedemann & Girard | Attorney Advertising

Don't miss a thing! Build a custom news brief:

Read fresh new writing on compliance, cybersecurity, Dodd-Frank, whistleblowers, social media, hiring & firing, patent reform, the NLRB, Obamacare, the SEC…

…or whatever matters the most to you. Follow authors, firms, and topics on JD Supra.

Create your news brief now - it's free and easy »

All the intelligence you need, in one easy email:

Great! Your first step to building an email digest of JD Supra authors and topics. Log in with LinkedIn so we can start sending your digest...

Sign up for your custom alerts now, using LinkedIn ›

* With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name.