California v. Mulcrevy
Annotate this CaseIn 2011, defendant pleaded no contest to unlawful exhibition of a firearm and grand theft. The trial court suspended imposition of sentencing and granted defendant formal probation for a period of 36 months. Among the terms of his probation, defendant was ordered to “obey all laws” and “not to use or possess any controlled substance, including marijuana, unless you [defendant] have a licensed prescription for the marijuana that is approved by the court.” Defendant was thereafter charged, in 2013, with misdemeanor unlawful possession of concentrated cannabis, and was alleged to have violated his probation based on that possession. Defendant moved in limine for the trial court to take judicial notice of an Attorney General’s opinion that concentrated cannabis is “marijuana” as that term is used in the Compassionate Use Act (CUA). The State moved to exclude evidence of the CUA, contending the reference to the term “marijuana” in the act precluded an interpretation that concentrated cannabis was also covered by the act because marijuana and concentrated cannabis are elsewhere separately defined and punished. The trial court reviewed the existing persuasive authority indicating that concentrated cannabis is covered by the CUA, rejected the authority as “unsound,” and ruled that “the [CUA] does not apply to concentrated cannabis” because the CUA does not define marijuana, refer to concentrated cannabis, or incorporate statutory definitions of either term. Defendant unsuccessfully moved for reconsideration of that ruling. On appeal, defendant argued the trial court violated his due process rights by erroneously precluding him from presenting the affirmative defense that he was permitted to possess concentrated cannabis pursuant to the CUA, and that there was insufficient evidence to support the finding that he violated the terms of his probation by possessing the concentrated cannabis because he had an adequate physician's recommendation. The Attorney General agreed, as did the Court of Appeal. The trial court's judgment that defendant violated the terms of his probation was reversed.
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